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LITTLE,  BROWN  &  CO.'S 

LAW    ADVERTISEE 

112   -WjA.SZIZXTGTON'    STRZ3Z2T,  BOSTON. 

MAY,    1855. 


JUDGE     CURTIS'S 


EDITION   OF   THE 


DECISIONS 


SUPREME  COURT  OP  THE  UNITED  STATE 


Now  in  Press,  and  will  shortly  be  Published,  the  Decisions  of  the 
Supreme  Court  of  the  United  States,  with  Notes  and  n  Digest,  by 
Hon.  Benjamin  R.  Curtis,  one  of  the  Associate  Justices  of  the 
Court.  In  18  volumes  octavo.  Comprising  the  Cases  reported 
by  Dallas,  4  vols.;  Cranch,  9  vols. ;  Wheaton,  12  vols.; 
Peters,  1G  vols. ;  Howard,  1G  vols. ;  in  all  57  volumes. 


EXTRACT  FROM  THE  PREFACE. 

"This  work  contains  the  decisions  of  the  Supreme  Court  of  the  Unit- 
States.    The  opinions  of  the  Court  are,  in  all  cases,  given  as  they  have  be 
printed  by  the  authorized  reporters,  after  correcting  such  errors  of  the  pr( 
or  of  citation  as  a  careful  examination  of  the  text  has  disclosed. 

"I  have  endeavored  to  give,  in  the  head-notes,  the  substance  of  each  de 
sion.  They  are  designed  to  sliow  the  points  decided  by  the  Court,  not  t 
dicta  or  reasonings  of  the  Judges. 

"  The  statements  of  the  cases  have  been  made  as  brief  as  possible.  E 
many  years,  it  has  been  the  habit  of  all  the  Judges  of  this  Court  to  set  for* 
in  their  opinions  the  facts  of  the  cases,  as  the  Court  viewed  them  in  maltr 
their  decision.  Such  a  statement,  when  complete,  renders  any  other  sup. 
lluous.  When  not  found  complete,  I  have  not  attempted  to  restate  the  -whc 
case,  but  have  supplied,  in  the  report,  such  facts  or  documents  as  seemed 
me  to  be  wanting. 


"In  some  cases,  turning  upon  questions,  or  complicated  states  of  fact,  and 
not  involving  any  matter  of  law,  I  have  not  thought  it  necessary  to  encum- 
ber the  work  with  detailed  statements  of  evidence  which  no  one  would  find 
it  useful  to  recur  to.     These  instances,  however,  are  few. 

"  To  each  case  is  appended  a  note  referring  to  all  subsequent  decisions  in 
which  the  case  in  the  te.^■t  ^^^  been  mentioned.  It  Avill  thus  be  easy  to  as- 
certain whether  a  decision  has  been  overruled,  doubted,  qualified,  explained, 
or  affirmed  •  and  to  see  what  other  applications  have  been  made  of  the  same 
or  analogous  princl])les. 

"  The  paging  of  the  authorized  reporters  has  been  preserved  at  the  head 
of  each  case,  and  in  the  margin  of  each  page,  for  convenience  of  reference; 
the  reporters  being  designated  by  their  initials,  —  D.  for  Dallas,  C.  for 
Cranch,  W.  for  AVheaton,  P.  for  Peters,  II.  for  Howard. 

"  It  is  expected  that  all  the  decisions  of  the  Court,  down  to  the  close 
of  the  December  Terra,  1854,  will  be  embraced  in  eighteen  volumes.  To 
these  will  be  added  a  Dicrest  of  all  the  decisions." 


We  ask  attention  to  the  following  approval  by  the  Members  of  the  Su- 
preme Court  of  the  United  States :  — 

"  We  approve  the  plan  of  Mr.  Justice  Curtis's  '  Decisions  of  the  Supreme 
Court  of  the  United  States,'  and  believe  that  its  execution  by  him  will  be  of 
much  utility  to  the  legal  profession,  and  to  our  country." 

Roger  B.  Taney,  Chief  Justice.  Petek  V.  Daniel,  Associate  Justice. 

John  McLean,  Associate  Justice.  Samuel  Nelson,  Associate  Justice. 

James  M.  Wayne,  Associate  Justice.  Robeut  C.  Grier,  Associate  Justice. 

John  Catron,  Associate  Justice.  J.  A.  Campbell,  Associate  Justice. 

The  Old  Series  of  these  Reports  are  in  57  volume,  the  Catalogue  price  of 
which  is  S21 7.50.  This  Edition,  in  18  volumes,  will  be  offered  to  Subscribers 
at  the  low  price  of  S3  a  volume,  or  854  the  set;  thus  bringing  them  within 
the  means  of  all.  The  volumes  will  be  delivered  as  fast  as  issued,  and  It  Is 
intended  that  the  whole  work  shall  be  completed  within  six  months  from  the 
present  date.  Vols.  I.  II.  III.  are  nearly  ready  for  publication.  Those  wish- 
ing to  subscribe  will  please  send  in  their  names  to  the  Publishers  as  early  as 
possible. 


REPUBLICATION    OF   THE 

ENGLISH   HEPOETS,   IN   FULL. 

BY  LITTLE,    BROWN  &   CO. 

Containing  Reports  of  all  the  Cases  before  the  House  of  Lords,  Privy 
Council,  the  Lord  Chancellor,  the  High  Court  of  Appeal  in  Chan- 
cery, all  the  Common-Law  Courts,  the  Court  of  Criminal  Aj^peal, 
and  the  Admiralty  and  Ecclesiastical  Courts. 

The  Publishers  of  this  Series  of  the  English  Law  and  Equity  Reports  in- 
vite the  attention  of  the  Profession  to  the  following  statements,  showing  the 
advantages  Avhich  they  possess  over  all  others :  — 

I.  Tlit'y  are  the  only  reprints  which  furnish  all  the  cases  decided  in  their 
respective  oonrts.     Tlic  third  volume  of  Ellis  and  Blackburn,  issued  from 


the  Philadelphia  press,  professes  to  give  the  decisions  of  the  Queen's  Bench 
in  Hilary,  Easter,  and  Trinity  Terms,  1854;  but  it  contains  only  eighty- 
six  cases  out  of  OXE  hundred  and  twenty-one,  all  ofichich  ivill  be  found 
in  the  Law  and  Equity  Eepoi-ts.  Many  of  the  cases  omitted  are  among  the 
most  important  decided  in  that  period.  The  Philadelphia  reprint  of  the  14th 
Common  Bench,  purport.'!  to  contain  the  cases  from  Michaelmas  Term,  1853, 
to  Easter  Term,  1854,  inclusive;  but  is  gives  only  sixty  cases  out  of  eighty- 
three.  For  the  remaininrj  cases,  the  America7i  lawyer  must  look  to  the  Law 
and  Equity  Reports.  The  Exchequer  Reports,  in  like  manner,  will  be  found 
incomplete.  And  this  incompleteness  of  the  Philadelphia  series  increases 
from  year  to  year ;  for  the  proportion  of  cases  omitted  is  much  greater  in 
the  recent  volumes  than  in  the  previous  ones. 

II.  The  character  of  the  Law  and  Equity  Reports  will  bear  the  most  rigid 
comparison  with  the  Philadelphia  series.  They  have  a  much  larger  circula- 
tion in  England,  and  are  as  freely  and  confidently  cited.  The  Law  Journal 
and  Jurist  are  cited  833  times  in  "  Shelford  on  Railways;"  while  Meeson 
and  AVelsley,  the  Queen's  Bench,  Common  Bench,  and  Exchequer  Reports 
are  collectively  cited  but  455  times.  In  "Hill  on  Trustees,"  the  Law  Joun- 
nal.  Jurist,  and  Law  and  Equity  Reports  are  cited  846  times.  In  "  Saun- 
ders's Pleading  and  Evidence,"  the  Law  Journal  and  Jurist  are  cited  1871 
times ;  while  the  Queen's  Bench,  Common  Bench,  and  Exchequer  Reports 
are  collectively  cited  but  1444  times.  And  an  examination  of  any  recent 
Enylish  law-book  icill  show  the  same  high  appreciation  of  the  p)Mi.cations  from 
ivhich  the  Law  and  Equity  Reports  are  printed. 

III.  In  these  Reports,  the  decisions  are  generally  given  several  months 
in  advance  of  the  Philadelphia  reprints.  Even  in  the  volumes  lohich  are 
announced  as  in  advance  of  our  reports,  it  ivill  be  found  that  a  large  propor- 
tion of  the  cases  had  become  familiar  to  the  profession,  through  the  Law  and 
Equity  Reports,  before  their  publication  at  Philadelphia.  But  by  the  reduc- 
tion of  matter  which  the  omission  of  the  Chancery  cases  in  the  inferior  courts 
will  cause,  we  shall  be  able  hereafter  to  publish  the  common-law  cases  seve- 
ral months  earlier  than  heretofore.  The  28th  volume,  containing  the  cases 
in  Michaelmas  Term,  1854,  and  a  part  of  Hilary  Term,  1855,  will  be  pub- 
lished in  July  next,  embracing  the  cases  of  the  first  part  of  4th  Ellis  and 
Blackbnrn  ;  Part  Second  of  15  Common  Bench,  and  Part  Third  of  10th  Ex- 
chequer Reports,  and  being  nearly  a  year  in  advance  of  their  publication  in 
the  Philadelphia  series.  Thereafter,  ice  intend  to  publish  the  cases  of  each 
term  within  four  months  from  the  rising  of  the  courts. 

IV.  In  addition  to  the  complete  reports  of  the  Common  Law  Courts,  this 
series  will  furnish  the  cases  before  the  House  of  Lords,  the  Privy  Couyicil, 
the  Lord  Chancellor,  the  High  Court  of  Appeal  in  Chancery,  the  Admiralty, 
and  Ecclesiastical  Courts;  making  the  amount  of  matter  more  than  double 
that  furnished  in  the  Philadelphia  series. 

V.  The  Law  and  Ecjuity  Reports  are  sold  at  $2  per  volume,  which  will 
amount  to  $8  per  year  hereafter.  Considering  the  amount  of  matter  lohich 
they  contain  their  cost  is  less  than  one  half  that  of  the  Philadelphia  series. 

These  Reports  are  now  regularly  digested  in  our  Annual  United  States 
Digest,  which  thus  embracesan  Annual  Digest  of  the  whole  English  and 
American  Law.  We  shall,  upon  the  completion  of  Volume  XXX.,  publish 
a  separate  Digest  of  these  Reports  up  to  that  time. 

For  the  greater  convenience  of  the  profession,  we  shall  also  hereafter 
publish  a  table  of  all  the  cases  in  these  Reports,  with  a  reference  to  the 
volume  and  page  of  every  other  series  where  the  same  case  may  be  found. 

Vols.  I.  to  XXVI.,  now  ready  for  delivery,  at  S2  per  volume,  to  perma- 
nent subscribers. 


WnxkB  txtuniii]  ^chililisjith 


3I31Iijraton's  Kntcntational  2lato» 

ELEMENTS  OF  INTERNATIONAL  LAW.  By  the  late  Hon. 
Henry  Wiieatox,  LL.  D.  Sixth  Edition,  revised,  annotated, 
and  brought  down  to  the  present  time,  with  a  Biographical  Notice 
of  Mr.  Wheaton,  and  an  Account  of  the  Diplomatic  Transactions 
in  which  he  was  concerned.  By  Hon.  Wm.  Beach  Lawrence, 
formerly  Charge  d'AfFaires  at  London.     In  one  volume.     8vo. 


^ttfleU  on  Sltmitations. 

TREATISE  ON  THE  LIMITATIONS  of  Actions  at  Law 
and  Suits  in  Equity  and  Admiralty,  with  an  Appendix  containing 
the  American  and  English  Statutes  of  Limitations,  and  embracing 
the  latest  Acts  on  the  subject.  By  Joseph  K.  Angell,  Esq. 
Third  Edition,  revised  and  greatly  enlarged.  By  John  Wilder 
May,  Esq.     1  vol.  8vo.     $5.00. 

Judge  Lipscomb,  in  giving  the  opinion  of  the  Supreme  Court  of  Texas,  in  1854, 
(11  Texas  Kep.  524,)  pronounced  this  work  the  "standard  work  on  Limitations." 

"  There  is  high  authority  for  saying  that  this  is  mucli  the  best  treatise  on  the 
very  important  subject  to  whicli  it  relates;  Lord  Brougliam  having  pronounced 
that  opinion  of  the  first  edition,  which  has  subsequently  been  much  enlarged  and 
improved.  All  the  learning  scattered  through  the  English  and  American  reports 
in  regard  to  the  construction  and  effect  of  the  various  statutes  of  limitations  appears 
to  have  been  diligently  compiled  and  systematically  arranged.  The  labors  of  Mr. 
May  have  considerably  increased  the  value  of  the  work,  and  will  cause  this  edi- 
tion to  supersede  the  previous  ones." —  JV.  Y.  Times. 

"  The  merits  of  this  treatise,  in  its  original  form,  are  well  known.  L^pon  its  first 
appearance  it  took  rank  among  our  standard  ti'eatises,  and  has  never  been  super- 
seded—  as  too  many  very  carefully  written  law  books  are  —  by  other  works  cm- 
bodying  later  views  and  doctrines. 

"  The  improvements  in  the  third  edition  consist  in  Mr.  May's  annotations  and 
references  to  the  latest  authorities.  The  original  text  of  Angell  stands,  we  be- 
lieve, unaltered;  but  in  notes  appended  to  it  Mr.  May  has  performed  the  useful 
service  of  refcn-ing,  under  the  proper  heads,  the  new  cases  decided  since  the  ori- 
ginal publication ;  often  quoting  them  at  length.  The  work  is  thus  enriched  by 
the  addition  of  upwards  of  seven  hundred  cases,  the  annotations  enlarging  the 
work  about  one  third,  the  number  of  pages  being  now  about  eight  hundred. 

"In  the  Appendix,  which  contains  the  statutes  of  limitations  of  the  various 
States,  we  note  the  addition  of  the  statutes  of  Cahfornia,  Florida,  Iowa,  and  Texas, 
not  embraced  in  the  previous  editions."  —  N'.  Y.  Commercial  Advertiser. 


American  Hailtoajj  (tantn. 

CASES  RELATING  TO  THE  LAW  OF  RAILWAYS,  decided 
in  the  Supreme  Court  of  the  United  States,  and  in  the  Courts 
of  the  several  States,  with  Notes.  By  Chauncey  Smith  and 
Samuel  W.  Bates,  Esqrs.,  Counsellors  at  Law.  Vol.  I.  8vo. 
$4.50. 


CASES  RELATING  TO  RAILWAYS  AND  CANALS,  argued 
and  adjudged  in  the  Courts  of  Law  and  Equity,  from  1835  to 
1852.  Edited  by  Samuel  W.  Bates  and  Chauncey  Smith, 
Esquires.     6  vols.     8vo.     $24.00. 

"  The  present  edition  of  the  '  English  Railway  Cases '  embodies  a  collection  of 
all  decisions  upon  that  subject  since  1835.  An  appendix  to  the  first  volume  con- 
tains all  the  cases  prior  to  that  date  which  bear  upon  American  Railway  Law. 
Editorial  notes  give  the  information  requisite  to  enable  American  readers  to  enter 
into  the  bearings  of  each  case.  The  'American  Railway  Cases'  contains  the 
entire  body  of  decisions  upon  the  subject,  in  this  country.  The  two  works  include 
nearly  one  thousand  cases ;  and  thus  form  a  very  complete  library  upon  their  im- 
portant topic. 

"  We  need  say  nothing  of  the  value  of  these  works  to  the  lawyer -whose  clients 
are  directors  of  companies ;  or  stockholders  in  them ;  or  travel  on  their  roads  or 
.send  freight  by  them;  or  have  their  lots  cut  through  by  new  routes;  or  are  liable 
in  any  way  to"  have  dealings  with  railroad  interests.  We  leave  such  a  lawyer  to 
look  at  the  books  themselves,  while  we  respectfully  inquire  whether  such  a  col- 
lection of  cases  would  not  be  a  suitable  addition  to  the  library  of  the  Board  Rooms 
of  some  of  our  companies."  —  N.  Y.  Times. 


Parsons  on  OTonttacts* 

TREATISE  on  the  Law  of  Contracts.  By  Hon.  Theophilus 
Parsons,  Professor  in  Dane  Law  College,  Cambridge,  Mass. 
Vol.  L     8vo.     $5.50. 


pijillips  on  Knsiivante. 

A  TREATISE  ON  THE  LAW  OF  INSURANCE.  By  Hon. 
WiLLARD  Phillips.  Fourth  Edition,  enlarged.  2  vols.  8vo. 
$10.00. 


?l^otoactr'si  a^tports, 

REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Court  of  the  United  States.  By  Benjamin  C.  Howard.  Vol. 
XVL     8vo.     $5.50. 

"  Next  to  the  reports  of  the  Courts  of  his  own  State,  those  of  the  United  States 
Supreme  Court  are,  in  many  respects,  the  most  important  and  valuable  to  the 
practising  lawyer.  If  the  decisions  of  that  Court  do  not,  perhaps,  embrace  so  wide 
a  range  of  questions,  yet  their  authority  in  our  State  courts  is  of  course  higher 
than  those  of  any  other  tribunals.  The  value  of  these  Reports  is  increased  by  the 
thorough  manner  in  which  they  are  prepared."  — N.  Y.  Times. 

"  These  official  reports  of  the  decisions  of  the  highest  Court  known  to  our  law, 
need  no  commendation  from  critic  or  reviewer.  The  bar  knows  their  value,  and 
the  world  has  learned  to  respect  the  learning,  the  integrity,  and  the  sagacity  of 
our  federal  judiciary." — N.  Y.  Commercial  Advertiser. 


mx^tW  on  iFite  antr  2Ltfc  Knsurancr. 

A  TREATISE  on  the  Law  of  Fire  and  Life  Insurance.  With  an 
Appendix,  containing  Forms,  Tables,  &c.  By  Joseph  K.  An- 
GELL,  Esq.     1  vol.     8vo.     $5.00. 


6 
Btaltc  on  ^ttacfjmritt* 

A  TREATISE  ON  THE  LAW  OF  SUITS  BY  ATTACHMENT 

in  the  United  States.      By  Charles  D.  Drake,  Esq.,  of  St. 
Louis.     1  vol.     8vo.    $4.50. 

"  It  is  now  about  six  weeks  since  I  had  tlie  pleasure  to  receive  tlie  copy  you 
■were  kind  enough  to  send  me  of  your  work  on  the  Law  of  Suits  by  Attachment, 
but  it  is  only  within  the  last  few  days  that  I  have  found  time  to  examine  it  with 
sufficient  care  to  enable  me  to  acquaint  myself  with  its  characteristics.  I  expected 
to  find  the  several  topics  embraced  by  the  general  subject  logically  arranged,  and 
treated  with  ability,  perspicuity,  and  learning,  and  it  affords  me  sincere  pleasure 
to  assure  you  that  this  expectation  has  not  been  disappointed.  It  is  very  clear 
that  such  a  work  was  needed,  and  while  it  cannot  fail  to  prove  eminently  useful 
to  your  professional  brethren  throughout  the  Union,  I  trust  it  will  bring  to  its 
author  the  rewards  to  which  it  appears  to  me  justly  to  entitle  him."  —  Letter  from 
Bon.  A.  ConhUng,  late  U.  S.  Judr/efor  the  Northern  District  of  New  Yoi-k. 

"I  am  much  pleased  with  your  Avork  on  the  Law  of  Attachments.  It  is  very 
creditable  to  you,  and  will  be  found  a  valuable  acquisition  to  the  profession.  You 
have  treated  the  subject  with  clearness  and  ability,  and  by  your  references  you 
have  sustained  your  views  by  the  highest  authorities."  —  Letter  from  Hon.  John 
McLean,  Associate  Justice  of  the  Siq)reme  Court  of  the  United  States. 


MoWu  31)atent  abases* 

A  COLLECTION  OF  PATENT  CASES  decided  in  the  Supreme 
and  Circuit  Courts  of  the  United  States,  from  their  organization 
to  the  year  1850,  with  Notes,  Index,  &;c.  By  James  B.  Robe, 
Esq.     2  vols.     8vo.     $10.00. 

"  Mr.  Robb's  book  is  a  most  welcome  addition  to  the  libraries  of  inventors  and 
the  owners  of  American  patents.  The  collection  is  much  more  complete  than 
any  similar  reports  which  Ave  have  in  this  branch  of  the  law  in  England."  — Prac- 
ticed Mechanics'  Journal. 


mniit'n  states  Session  Haius,  1854-55. 

THE    STATUTES   AT   LARGE   and   Treaties  of  the  U.  S.  of 

America.  Commencing  with  the  Second  Session  of  the  Thirty- 
third  Congress,  1854  -  55  —  carefully  collated  with  the  originals 
at  Washington.  Published  by  authority  of  Congress.  Edited 
by  George  Mixot,  Esq.     Royal  8vo.,  stitched  $1.00. 


AND    PREPARING    FOR   PUBLICATION. 


PARSONS   ON   COMMERCIAL,   LAW. 

THE  PRINCIPLES  OF  COMMERCIAL  LAW.  By  Hon. 
Theophilus  Parsoxs,  LL.  D.,  Dane  Professor  in  the  Law 
School  of  Harvard  University,  in  Cambridge.     2  vols.     8vo. 

The  principal  topics  of  the  first  volume  wiil  be  the  Origin  and  History 
of  the  Law  Merchant ;  the  Law  of  Partnership ;  of  Sales ;  of  Agency ; 
of  Bills  and  Notes;  and  of  Marine  Insurance.  The  second  volume  will 
contain  the  Law  of  Shipping,  and  the  Law  and  Practice  of  Admiralty. 


BISHOP   ON  CRIMINAL,   LAW. 

COMMENTARIES  ON  CRIMINAL  LAW.  By  Joel  Pren- 
tiss Bishop,  Esq.,  Author  of'"  Commentaries  on  the  Law  of  Mar- 
riage and  Divorce."  The  first  volume  to  be  a  complete  elementary 
Treatise  of  itself. 

This  work  is  intended  to  embrace  the  entire  field  of  En(i;lish  and 
American  Criminal  Jurisprudence,  traversed  by  neio  patlnf.  It  will  be 
both  elementary  and  practical ;  adapted  alike  to  the  use  of  the  student, 
the  magistrate,  and  the  practising  lawyer ;  and  on  important  points,  will 
contain  citations  of  all  the  English  and  American  cases. 

AMERICAN  RAILROAD  CASES. 

A  COMPLETE  COLLECTION  OF  THE  AMERICAN  CASES 
relating  to  the  Rights,  Duties,  and  Liabilities  of  Railroads,  with 
Notes  and  References  to  the  English  and  American  Railway, 
Canal,  and  Turnpike  Cases.  By  Chauncey  Smith  and  S.  W. 
Bates,  Esquires.     2  vols.     8vo.     Vol.  I.  now  ready. 

PARSONS   ON   CONTRACTS. 

A  TREATISE  ON  THE  LAW  OF  CONTRACTS.  By  Hon. 
Theophilus  Parsons,  Professor  in  Dane  Law  College,  Cam- 
bridge, Mass.  In  2  vols.  8vo.  Vol.  I.  now  ready.  Vol.  II. 
will  be  ready  in  June. 

THE   LAW   OF   ADMIRALTY. 

LEADING  CASES  IN  ADMIRALTY  AND  SHIPPING,  with 
Notes  and  Commentaries.  By  a  Member  of  the  Suffolk  Bar. 
1  vol.     8vo. 

BLACKBURN  ON  THE  CONTRACT  OF  SALE. 

A  TREATISE  ON  THE  LAW  OF  SALES.  By  C.  Black- 
burn. With  Additions,  Notes,  and  References.  By  William 
P.  Wells,  Esq.    1  vol.     8vo. 

FRAUDS. 

A  TREATISE  ON  THE  CONSTRUCTION  OF  THE  STA- 
TUTE OF  FRAUDS.  By  Causten  Browne,  Esq.,  of  the 
Suffolk  Bar.     1  vol.     8vo. 

ARBITRATION. 

ARBITRATION,  at  Common  Law,  in  Equity,  and  under  the  Sta- 
tutes of  the  States  of  the  United  States.  By  Edward  G.  Lor- 
ING,  Esq.,  of  the  Suffolk  Bar. 

VENDORS  AND  PURCHASERS. 

THE  LAW  OF  VENDORS  AND  PURCHASERS  OF  REAL 
PROPERTY.     By  Francis  Hilliard,  Esq.     2  vols.     8vo. 


8 

HUSBAND  AND  WIFE. 

THE  PRINCIPLE  AND  RULES  OF  LAW  regulating  the  Pro- 
perty of  Husband  and  Wife ;  and  Civil  Actions  tlierefoi*.  By 
Edward  G.  Lorixg,  Esq. 

PRECEDENTS  OF  INDICTMENTS. 

PRECEDENTS  OF  INDICTMENTS,  Special  Pleas,  &c.,  adapted 
to  American  Practice,  with  Notes,  containing  the  LaAV  of  Crimi- 
nal Pleading.  By  Charles  R.  Train,  and  F.  F.  Heard,  Esqrs., 
of  the  Middlesex  Bar.     1  vol.      8vo.     Nearly  ready. 

HIGHWAYS. 

A  TREATISE  ON  THE  LAW  OF  HIGHWAYS,  Dedication 
of.  Travellers,  Travelling,  &c.  By  Joseph  K.  Angell,  Esq. 
1  vol.     8vo. 

ENGLISH  REPORTS. 

LAW  AND  EQUITY  REPORTS.  The  Common  Law,  Equity, 
Criminal,  Admiralty,  and  Ecclesiastical  Reports  combined.  Edited 
by  Ed:muxd  H.  Bexnett  and  Chauncet  Smith,  Esqrs.  Vol. 
XXVII. 

GRAY'S  REPORTS. 

REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Judicial  Court  of  Massachusetts.  By  Horace  Gray,  Jr.  1  vol. 
8vo. 

CRIMINAL  LAW. 

A  COLLECTION  OF  LEADING  CASES  in  various  branches  of 
the  Criminal  Law,  with  Notes.  By  B.  F.  Butler  and  F.  F. 
Heard,  Esquires.     2  vols.     8vo. 

T^^ALKER'S   INTRODUCTION. 

INTRODUCTION  TO  COMMON  LAW.  By  Hon.  Timothy 
Walker,  of  Cincinnati.      Third  edition,  revised.     1  vol.       8vo. 

REAL   PROPERTY. 

LEADING  CASES  in  the  Law  relating  to  Real  Property,  Con- 
veyancing, and  the  Construction  of  Wills.  By  Oavex  D.  Tudor, 
Esq.,  of  the  Middle  Temple.  With  Notes,  by  a  Member  of  the 
Suflfolk  Bar.     1  vol.      8vo. 

HOWARD'S   REPORTS. 

REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Court  of  the  United  States.  By  Benjamin  C.  Howard.  Vol. 
XVII. 


CONFLICT  OF  LAWS. 


COMMENTARIES 

ON   THE 

CONFLICT  OF  LAWS, 

FOREIGN   AND    DOMESTIC, 


IN   REGARD   TO 


CONTRACTS,   RIGHTS,  AND   REMEDIES, 


AND  ESPECIALLY   IN  REGARD   TO 


MARRIAGES,  DIVORCES,  WILLS,  SUCCESSIONS,  AND  JUDGMENTS. 


By  JOSEPH  STORY,  ll.d. 

m 

DANE   PROFESSOR   OF   LAW   IN   HARVARD   UNIVERSITY. 


''  II  r^gnera  done  toujours  entre  les  nations  vine  contrariety  perp6tuell3  de  loix  ; 
peutetre  r(?gnera-t-elle  perp^tuellement  entre  nous  sur  bien  des  objets.  Dela  la 
necessit(5  de  s'instruire  des  regies,  et  des  principes,  qni  peuvent  nou^  conduire 
dans  la  decision  des  guestions,  que  cette  variety  pent  faire  uaitre."  —  Boullenols, 
Traits  de  la  Personalite,  <^c.  des  Loix,  Preface. 


FOURTH  EDITION. 

REVISED,    CORRECTED,   AND   GREATLY   ENLARGED. 


BOSTON: 
LITTLE,  BROWN  AND   COMPANY. 

1852. 


Entered  according  to  Act  of  Congress,  in  the  year  1852. 

By  William  W.  Stort, 

in  tlie  Clerk's  office  of  the  District  Court  of  the  District  of  Massachusetts. 


T 


RIVERSIDE,    CAJI  BRIDGE: 
rillXTED   BY    II.    O.    IIOUGIITOX  AND    COMPANY. 


ADVERTISEMENT  TO  THE  FOURTH  EDITI6N. 


In  the  preparation  of  this  Edition  the  late  English  and  Ameri- 
can cases  have  been  examined,  and  such  additions  made  to  the 
text,  as  the  recent  decisions  seemed  to  require.  The  new  mat- 
ter is  always  included  in  brackets. 

Edmund  H.  Bennett. 

Boston,  September,  1852. 


75G55G 


ADVERTISEMENT  TO  THE  THIRD  EDITION. 


The  present  edition  of  the  Commentaries  on  the  Conflict 
OP  Laws  contains  the  last  revisions  and  emendations  made  by 
the  late  Author.  As  no  material  alteration  from  the  text  of  the 
last  edition  "was  contemplated  by  him,  the  Editor  has  not  deem- 
ed it  to  be  within  his  province  to  make  any  changes  except  such 
as  were  made  by  the  Author  in  his  manuscript  copy,  or  any  ad- 
dition beyond  the  citation  of  the  late  cases. 

W.  W.  Stoey. 

Boston,  July  1,  1846. 


ADVERTISEMENT  TO  THE  SECOND  EDITION. 


The  former  edition  of  this  work-  being  exhausted,  I  have 
availed  myself,  in  the  preparation  of  the  present  edition,  of 
the  opportunity  of  revising,  correcting,  and  amending  the  text 
and  notes  throughout,  and  of  adding  such  new  materials  as 
have  been  furnished  by  the  recent  authorities  at  the  common 
law,  as  well  as  by  more  diligent  researches  into  foreign  juris- 
prudence. For  the  opinions  of  some  foreign  jurists,  I  was 
obliged,  in  the  former  edition,  (as  the  reader  was  informed  in 
the  notes,)  to  rely  upon  the  citations  from  their  works,  which 
I  found  in  other  authors,  not  having  access  to  the  originals. 
With  one  or  two  unimportant  exceptions,  the  originals  of  these 
foreign  jurists  are  now  in  my  possession,  and  have  been  con- 
sulted by  me ;  so  that  I  have  been  enabled  to  correct  some 
errors  in  those  citations,  and  also  to  furnish  more  complete  and 
perfect  statements  of  their  respective  opinions.  Perhaps  it  may 
not  be  useless  here  to  add,  that  in  every  case,  where  any  author- 
ity for  any  position  is  cited  afc  the  bottom  of  the  page,  the  reader 
may  rest  assured,  that  the  very  citation  has  been  perused  and 
diligently  compared  by  me  with  the  original. 

As  the  works  of  foreign  jurists,  especially  of  those,  who 
lived  before  the  middle  of  the  eighteenth  century,  are  rarely 
to  be  found  in  American  Libraries,  either  public  or  private, 
and  are  becoming  daily  more  scarce  and  difficult  to  be  pur- 
chased abroad,  I  have  made  my  extracts  therefrom  more  co- 
pious, and  often  cited  the  words  of  the  original,  so  that  the 


X  ADVERTISEMENT. 

reader  might  be  spared  the  necessity  of  farther  researches 
into  the  originals,  and  also  might  possess  the  means  of  ascer- 
taining the  accuracy  of  the  expositions  in  the  text. 

These  explanations  may  account  for  the  fact,  that  the  work, 
unexpectedly  to  myself,  has  swelled  to  double  its  former  size  ; 
a  fact,  which  (as  the  pages  and  sections  of  the  former  edition 
are  still  preserved)  might  not  readily  occur  to  those,  who  are 
not  accustomed  to  examine  the  signatures  at  the  bottom  of  the 
different  sheets. 

Since  the  publication  of  the  former  edition,  Mr.  Burge  has 
pubhshed  his  very  able  and  comprehensive  Commentaries  on 
Colonial  and  Foreign  Law,  mainly,  as  applicable  to  the  colonies 
of  Great  Britain,  in  which  he  has  devoted  a  number  of  chap- 
ters to  the  consideration  of  many  of  the  topics  embraced  in 
the  present  work.  The  plan  of  his  Work,  however,  essen- 
tially differs  from  my  own  in  its  leading  objects.  It  exhibits 
great  learning  and  research ;  and  as  its  merits  are  not  as  yet 
generally  known  to  the  profession  on  this  side  of  the  Atlantic, 
I  have  made  many  references  to  it,  and  occasional  quotations 
from  it,  with  the  view  of  enabling  the  profession  to  obtain 
many  more  illustrations  of  the  doctrines,  than  my  own  brief 
text  would  suggest,  and  also  fully  to  appreciate  his  learned  la- 
bors. Monsieur  Foelix,  also,  the  accomplished  editor  of  the 
Bevue  Etrangere  et  Francaise,  (a  highly  useful  and  meritorious 
periodical,  published  at  Paris,)  has,  in  the  volume  of  the  year 
1840,  discussed,  in  a  series  of  articles,  many  topics  of  the  Con- 
flict of  Laws,  and  given  the  opinions  of  the  leading  foreign 
jurists  on  the  subject.  I  have  gladly  referred  to  his  very  in- 
teresting and  lucid  expositions,  that  my  own  countrymen  may 
more  readily  understand  their  great  value  and  importance. 

It  is  not  probable,  that,  in  the  course  of  my  own  life,  this 
work  will  undergo  any  essential  change  from  its  present  form. 
Other  avocations  and  other  pressing  duties,  judicial  as  well  as 
professorial,  will  necessarily  occupy  all  the  time  and  attention, 


ADVERTISEMENT.  XI 

■which  I  may  hereafter  be  permitted  to  command  for  any  juridi- 
cal pursuits.  I  must  therefore,  dismiss  these  Commentaries 
to  the  indulgent  consideration  of  the  reader,  not  as  a  work, 
which  has  surveyed  the  whole  subject,  or  exhausted  the  ma- 
terials ;  but  as  an  essay  towards  opening  the  leading  doctrines 
and  inquiries  belonging  to  private  international  jurisprudence, 
which  the  genius  and  learning,  and  labors  of  more  gifted 
minds  may  hereafter  mould,  and  polish,  and  expand  into  an 
enduring  system  of  public  law.  My  own  wishes  will  be  fully 
satisfied,  if  (to  use  the  language  of  my  Lord  Coke,  in  the  close 
of  his  first  Institute)  any  thing  shall  be  found  herein,  which 
"  may  either  open  some  windows  of  the  law,  to  let  in  more 
light  to  the  student,  by  diligent  search  to  see  the  secrets  of 
the  law,  or  to  move  him  to  doubt,  and  withal  to  enable  him  to 
inquire,  and  learn  of  the  sages,  what  the  law,  together  with  the 
true  reason  thereof,  in  these  cases  is," 

Joseph  Story. 

January,  1841. 


Hon.  JAMES  KENT,  ll.  d. 

Sir, 

It  affords  me  very  sincere  satisfaction  to  have  the  opportu- 
nity of  dedicating  this  Work  to  you.  It  belongs  to  a  branch 
of  international  jurisprudence,  which  has  been  long  famihar 
to  your  studies,  and  in  -which  you  have  the  honor  of  having 
been  the  guide  and  instructor  of  the  American  youth.  I  can 
trace  back  to  your  early  labors  in  expounding  the  civil  and 
the  foreign  law  the  motive  and  encouragement  of  my  own  far 
more  limited  researches.  I  wish  the  present  work  to  be  con- 
sidered as  a  tribute  of  respect  to  a  distinguished  Master  from 
his  grateful  pupil. 

It  is  now  about  thirty-six  years  since  you  began  your  judi- 
cial career  on  the  Bench  of  the  Supreme  Court  of  the  State 
of  New  York.  In  the  intervening  period  between  that  time 
and  the  present,  you  have  successively  occupied  the  offices  of 
Chief  Justice  and  of  Chancellor  of  the  same  State.  I  speak 
but  the  common  voice  of  the  Profession  and  the  public,  when 
I  say,  that  in  each  of  these  stations  you  have  brought  to  its 
duties  a  maturity  of  judgment,  a  depth  of  learning,  a  fidelity 
of  purpose,  and  an  enthusiasm  for  justice,  which  have  laid  the 
solid  foundations  of  an  imperishable  fame.  In  the  full  vigor 
of  your  intellectual  powers,  you  left  the  Bench  only  to  en- 
gage in  a  new  task,  which  of  itself  seemed  to  demand  by  its 
extent  and  magnitude  a  whole  life  of  strenuous  diligence. 
That  task  has  been  accomplished.  The  "  Commentaries  on 
American  Law "  have  already  acquired  the  reputation  of  a 

CONFL.  b 


XIV  DEDICATIOX. 

juridical  Classic,  and  have  placed  their  author  in  the  first 
rank  of  the  benefactors  of  the  Profession.  You  have  done 
for  America,  what  Mr.  Justice  Blackstone  in  his  invaluable 
Commentaries  has  done  for  England.  You  have  embodied 
the  principles  of  our  law  in  pages  as  attractive  by  the  per- 
suasive elegance  of  their  style,  as  they  are  instructive  by  the 
fulness  and  accuracy  of  their  learning. 

You  have  earned  the  fairest  title  to  the  repose,  which  you 
now  seek,  and  which  at  last  seems  within  your  reach.  It  is, 
in  the  noblest  sense,  Otium  cum  dignitate.  May  you  live 
many  years  to  enjoy  it !  The  consciousness  of  a  life,  like 
yours,  in  which  have  been  blended  at  every  step  public  spirit 
and  private  virtue,  the  affections,  which  cheer,  and  the  taste, 
which  adorns  the  domestic  circle,  cannot  but  make  the  recol- 
lections of  the  past,  sweet,  and  the  hopes  of  the  future,  ani- 
mating. 

I  am,  with  the  highest  respect. 

Your  obliged  friend, 

JOSEPH  STORY. 

Cambridge,  Massachusetts, 
Januaiy  1,  1834. 


PREFACE. 


I  NOW  submit  to  the  indulgent  consideration  of  the  profes- 
sion and  the  public  another  portion  of  the  labors  appertaining 
to  the  Dane  Professorship  of  Law  in  Harvard  Universitj. 
The  subject  is  one  of  great  importance  and  interest ;  and 
from  the  increasing  intercourse  between  foreign  States,  as 
well  as  between  the  different  States  of  the  American  Union, 
it  is  daily  brought  home  more  and  more  to  the  ordinary 
business  and  pursuits  of  human  life.  The  difficulty  of  treat- 
ing such  a  subject  in  a  manner  suited  to  its  importance  and 
interest  can  scarcely  be  exaggerated.  The  materials  are  loose 
and  scattered,  and  are  to  be  gathered  from  many  sources, 
not  only  uninviting,  but  absolutely  repulsive,  to  the  mere 
Student  of  the  Common  Law.  There  exists  no  treatise  upon 
it  in  the  English  language ;  and  not  the  slightest  effort  has 
been  made,  except  by  Mr.  Chancellor  Kent,  to  arrange  in  any 
general  order  even  the  more  familiar  maxims  of  the  Common 
Law  in  regard  to  it.  Until  a  comparatively  recent  period, 
neither  the  English  Lawyers,  nor  the  English  Judges  seem 
to  have  had  their  attention  drawn  towards  it,  as  a  great 
branch  of  international  jurisprudence,  which  they  were  required 
to  administer.  And,  as  far  as  their  researches  appear  as  yet 
to  .have  gone,  they  are  less  profound  and  satisfactory,  than 
their  admirable  expositions  of  municipal  law. 

The  subject  has  been  discussed  with  much  more  fulness, 
learning,  and  ability  by  the  foreign  jurists  of  continental 
Europe.  But  even  among  them  there  exists  no  systematical 
Treatise   embracing   all   the   general   topics.      For   the   most 


XVI  PKEFACE. 

part,  they  have  discussed  it  only  with  reference  to  some  few 
branches  of  jurisprudence,  peculiar  to  the  civil  law,  or  to 
the  customary  law  (almost  infinitely  varied)  of  the  neigh- 
boring States  of  Europe,  or  the  different  Provinces  of  the 
same  Empire.  And  it  must  be  confessed,  that  their  Avritings 
are  often  of  so  controversial  a  character,  and  abound  with 
so  many  nice  distinctions,  (not  very  intelligible  to  Jurists  of 
the  school  of  the  Common  Law,)  and  with  so  many  theories 
of  doubtful  utility,  that  it  is  not  always  easy  to  extract  from 
them  such  principles,  as  may  afibrd  safe  guides  to  the  judg- 
ment. Rodenburg,  Boullenois,  Bouhier,  and  Froland  have 
written  upon  it  with  the  most  clearness,  comprehensiveness, 
and  acuteness.  But  they  rather  stimulate  than  satisfy  inquiry  ; 
and  they  are  far  more  elaborate  in  detecting  the  errors  of 
others,  than  in  widening  and  deepening  the  foundations  of 
the  practical  doctrines  of  international  jurisprudence.  I  am 
not  aware,  that  the  works  of  these  eminent  Jurists  have  been 
cited  at  the  English  Bar ;  and  I  should  draw  the  conclusion, 
that  they  are  in  a  great  measure,  if  not  altogether,  unknown 
to  the  studies  of  AYestminster  Hall.  How  it  should  happen, 
that,  in  this  age,  English  Lawyers  should  be  so  utterly  indiffer- 
ent to  all  foreign  jurisprudence,  it  is  not  easy  to  conceive. 
Many  occasions  are  constantly  occurring,  in  which  they  would 
derive  essential  assistance  from  it,  to  illustrate  the  questions, 
which  are  brought  into  contestation  in  all  their  Courts. 

In  consulting  the  foreign  Jurists,  I  have  felt  great  embar- 
rassment, as  well  from  my  own  imperfect  knowledge  of  the 
jurisprudence,  which  they  profess  to  discuss,  as  from  the 
remote  analogies,  which  it  sometimes  bears  to  the  rights, 
titles,  and  remedies  recognized  in  the  Common  Law.  To 
give  their  opinions  at  large  upon  many  topics  would  fill 
volumes  ;  to  omit  all  statements  whatever  of  their  opinions 
would  be  to  withhold  from  the  reader  many  most  important 
lights,  to  guide  his  own  studies,  and  instruct  his  own  judg- 


PREFACE.  XVll 

ment.  I  have  adopted  an  intermediate  course  ;  and  have 
laid  before  the  reader  such  portions  of  the  opinions  and  rea- 
sonings of  foreign  Jurists,  as  seemed  to  me  most  useful  to 
enable  him  to  understand  their  doctrines  and  principles,  and 
to  assist  him  with  the  means  of  making  more  ample  researches, 
if  his  leisure  or  his  curiosity  should  invite  him  to  the  pursuit. 
Humble  as  this  task  may  appear  to  many  minds,  it  has  been 
attended  with  a  labor  truly  discouraging  and  exhausting.  I 
dare  not  even  now  indulge  the  belief,  that  my  success  has  been 
at  all  proportionate  to  my  wishes  or  my  efforts.  I  feel,  how- 
ever, cheered  by  the  reflection  (is  it  a  vain  illusion  ?)  that 
other  minds,  of  more  ability,  leisure,  and  learning,  may  be 
excited  to  explore  the  paths,  which  I  have  ventured  only  to 
point  out.  I  beg,  in  conclusion,  to  address  to  the  candor  of 
the  Profession  my  own  apology  in  the  language  of  Strykius ;  — 
"  Crescit  disputatio  nostra  sub  manibus ;  unum  enim  si  absol- 
veris  jus,  plura  se  offerunt  consideranda.  At  nos  temporis, 
quod  nimis  breve  nobis  fit,  rationem  habentes,  accuratius  ilia 
inquirere  baud  possumus.  Hinc  sufficerit,  in  presens  sparsisse 
qusedam  saltem  adhuc  jura,  quidque  de  iis  statuamus,  vel  obiter 
dixisse."  * 

JOSEPH  STORY. 

Cambridge,  Massachusetts. 
January  1, 1834. 

*  Strykii  Disputatio  1,  ch.  2,  §  92,  Tom.  ii.  p.  24. 


CONTENTS. 


List  of  Authors  cited :         .      xxi-xxiv 

Index  to  cases  cited.  xxv-xxxviii 

CHAPTER  I. 

Sections 
Introductory  Remarks. v        .  1-16 

CHAPTER  II. 
General  Maxims  of  InternationalJurisprudence.  .         .  17-38 

CHAPTER  HI. 
National  Domicil 39-49 

CHAPTER  IV. 
Capacity  of  Persons. 50  - 106 

CHAPTER  V. 
Marriage 107-124 

CHAPTER  VI. 
Marriage  —  Incidents  to 125-199 

CHAPTER  VII. 
Foreign  Divorces 200-230^. 

CHAPTER  Vm. 
Foreign  Contracts 231-373 

CHAPTER  IX. 
Personal  Property 374-423  A. 


XX  CONTENTS. 

Sections 

CHAPTER  X. 

Real  Property.  424- 463  o. 

CHAPTER  XL 
Wills  and  Testaments.         ......  464  -  479  n. 

CHAPTER  XH. 
Succession  and  Distribution. 480-491 

CHAPTER  Xni. 
Foreign  Guardianships  and  Administrations.  .         .         .      492-529 

CHAPTER  XIV. 
Jurisdiction  and  Remedies. 530-583 

CHAPTER  XV. 
Foreign  Judgments 584-618 

CHAPTER  XVI. 
Penal  Laws  and  Offences 619-628 

CHAPTER  XVH. 
Evidence  and  Proofs. 629  -  645 


LIST  OF  AUTHORS  CITED. 


The  following  list  of  some  of  the  more  important  Authors,  whose  works 
have  been  cited,  may  assist  the  student  in  his  researches. 

D'Aguesseau,  Henry  Francis,  Chancellor  of  France,  born  at  Lim- 
oges, 1668,  and  died  1751.  His  works  are  collected  and  published 
in  13  vols.  4to. 

Alexander  ab  Alexandro,  a  Neapolitan  lawyer,  born  1461,  and  died 
at  Rome  about  the  age  of  62. 

D'Argentre,  Bertrand,  President  of  the  Presidial  of  Kennes,  born 
in  1519,  and  died  in  1590.  His  works  are  entitled  "  Commentarii 
in  Fatrias  Britonum  Leges,  seu  Consuetadines  generales  Ducatus 
Britanice." 

Baldus,  Ubaldus,  born  about  1324,  died  1400.  His  works  are  com- 
prised in  4  vols.  fol. 

Bartolo,  or  Bartholus,  born  at  Sasse  Ferrato,  in  the  March  of  Ancona, 
1313,  and  died  in  his  46th  year.  He  was  called  "  the  star  and 
luminary  of  lawyers,  the  master  of  truth,  the  lantern  of  equity, 
the  guide  of  the  blind,"  &c.  His  works  were  printed  at  Venice, 
1499,  in  4  vols,  fol.,  according  to  Camus,  in  1599,  in  10  or  11  vols, 
fol.,  according  to  Watt. 

BouHiER,  J.,  President  of  the  Parliament  of  Dijon,  born  at  that  place, 
1673,  and  died  1746,  His  works,  relating  to  the  present  subject, 
are  published  in  two  vols,  fol.,  and  entitled,  "  Les  Coutumes  du 
Duch6  de  Bourgogne  avec  les  Observations  du  President  Bouhier." 

BouLLENois,  Louis,  advocate  in  the  Parliament  of  Paris,  born  at  Paris 
1680,  and  died  1762.  There  are  two  works  by  him,  on  the  present 
subject:  "  Trait6  et  de  la  Personalite  et  de  la  R6alite  des  Lois,  Cou- 
tumes, Statuts,  par  forme  d'Observations,"  in  2  two  vols.  4to.,  and 
"  Dissertations  sur  des  Questions,  qui  naissent  de  la  Contrari6t6  des 
Loix  et  des  Coutumes."  4to.  This  last  was  published  first,  and 
is  the  original  outline  of  the  larger  work,  which  afterwards  appeared. 

Bretonnier  Bartholemew  Joseph,  advocate  of  the  Parliament  of 
Paris,  born  at  Montrotier,  near  Lyons,  1656,  and  died,  1727.  He 
is  the  author  of  a  work  in  2  vols.  12mo.,  entitled  "  Recueil  des 
principales  Questions  de  Droit  qui  se  jugent  diversement  dans 
les   differens  Tribunaux   du  Royaume,   avec   des    Reflexions  pour 


XXll  LIST    OF   AUTHORS   CITED. 

concilier  la  Diversite  de  la  Jurisprudence."     He   also   edited    the 

works  of  Henrys. 
BuRGE,   William,  Commentaries   on  Colonial  and  Foreign  Laws  gene- 
rally and  in  their  conflict  with  each  other.     4  vols.  8vo.     London, 

1838. 
BuRGUNDUs,  BuRGUNDius,  or  BouRGOiGNE,  NicoLAUs,  jurisconsult,  born 

at  Enghien  in  Hainault,  1586.     He  is  the  author  of  a  work,  entitled, 

"  Tractatus  Controversiarum  ad  Consuetudinem  Flandrise." 
Bynkershoek,  Cornelius  van,  born  at  Middlebourg,  1673,  and  died 

173.     His  works  are  well  known. 
Casaregis,  Joseph   Laurentius   de,   born    at   Genoa,    1670,   and   died 

1737.     His  works  are  entitled,  "  Discursus  legales  de  Commercio," 

and  are  published  in  2,  3,  and  4  vols.  fol. 
CHRiSTiNiEus,   Paulus,    bom   at   Malines,    1533,    and   died    1638.     His 

works    are,    "  Practicarum    Quaistionum    Rerumque    in    Supremis 

Belgarum  Curiis  actarum  et  observationum  Decisiones  :  "  and  "  Com- 

mentarii  in  Leges  Municipales  Mechlinienses." 
Cochin,  Henry,  advocate  in  Parliament,  born  at  Paris,    1687,  and  died 

1747.     His  works  are  collected  in  6  vols.  4to. 
CoQUiLLE,  Gui,  advocate  of  the  Parliament  of  Paris,  born  at  Decise  in 

Nivernois,  1523,  and  died  1603.     There  is  a  work  by  him,  "  Des 

Coutumes  des  Nivernois." 
CujAS,  James,  born  at  Thoulouse,  1520,  and  died  1590.     His  voluminous 

works  need  not  be  particularly  mentioned, 
Denisart,  J.  B.,  jurisconsult,  born  1712,  and  died  1765.     He  published 

"  Collections  de  D6cisions  nouvelles  relatives  a  la  Jurisprudence." 
DoMAT,  John,  born  at  Clermont  in   Auvergne,   1625,    and   died   1696. 

His  Civil  Law  in  its  natural  order  is  well  known  through  the  trans- 
lation of  Dr.  Strahan. 
DuMouLiN,  (in  Latin  MoLiNiEus,)  Chakles,  born  1500,  and  died  1560. 

What  he  has  written  upon  the  present  subject  is  to  be  found  in  his 

Commentary  on  the  first  book  of  the  Code,  verb.  Conclusiones  de 

Statutis,  in  his  53d  Consilium,  and  in  his  notes  on  Alexander,  De- 

cius,  and  Chasseneuz. 
Duranton,  a..  Professor  of  Law  at  Paris.     His  works  are,  "  Cours  de 

Droit  Francais,  suivant  le  Code  Civil,"  in  20  vols.  8vo. 
Emerigon,  Baltazard  Marie,  advocate  of  the  Parliament  of  Aix,  born 

about  1725,  and  died   1784.     His"Traite  des  Assurances,"  2  vols. 

4to.  is  referred  to  in  the  present  Commentaries. 
Erskine,  John,  Professor  of  Law  at  Edinburgh.     His  principal  work  is 

entitled  "  Institutes  of  the  Laws  of  Scotland." 
Everiiard  Nicholas,  born  in  the  island  of  Walcheren,  1462,  and  died 

1532.     His   works   are   "  Topica  Juris,   sivc   Loci  Argumentorum 

Legales"  ;  and  "  Consilia,  sivc  Responsa  Juris." 
FoELix   M.,  Editor  of  the  "  Review  Etrangere  et  Francaise,"  a  learned 

periodical  published  at  Paris,  beginning  in  1833  and  still  (1840)  con- 
tinued. 


LIST   OF   AUTHORS    CITED.  XXIU 

Froland,  Louis,  advocate  of  the  Parliament  of  Rouen,  died  1764. 
His  works  relating  to  the  present  subject,  in  two  4to  vols,  are  en- 
tilled,  "  Memoire  concernantla  Nature  et  la  Qualite  des  Statuts." 

Gaill,  Andrew,  born  at  Cologne,  1525,  and  died  1587.  He  was  called 
the  Papinian  of  Germany. 

Grotius,  Hugo,  born  at  Delft,  1583,  and  died  1645.  His  works  are 
well  known. 

Heineccius,  Johannes  Gotleie,  Professor  of  Philosophy  and  Law  at 
Halle,  born  at  Eisenburg,  1681,  and  died  1741.  His  works  need 
not  be  particularly  mentioned. 

Henrys,  Claude,  juris,consult,  born  at  Montbrison,  1615,  and  died  1682. 
His  works  are  collected  in  four  vols.  fol. 

Hkrtius,  Johannes  Nicolaus,  born  near  Giessen,  1651,  and  died  1710. 
His  treatise  "Collisione  Legum"  is  to  be  found  in  his  select  works 
in  two  vols.  4to. 

HuBERUs,  Uleicus,  a  lawyer,  historian,  and  philologer,  born  at  Dockum 
in  the  Dutch  territories,  1635,  and  died  1694.  His  treatise  "  De 
Conflictu  Legum  "  is  to  be  found  in  his  "  Preelectiones  Juris  Civilis," 

3  vols.  4to. 

Kaims  Lord,  (Henry  Home,)  born  at  Kaims,  in  Berwickshire,  1696,  and 
died  1782.     The  reader  is  referred  to  his  "  Principles  of  Equity." 

Le  Brun  Denis,  advocate,  died  1708,  before  the  publication  of  his  prin- 
cipal work,  "  Trait6  de  Communaut6s." 

Leeowen,  Simon  van,  born  at  Leyden,  1625,  and  died  1682.  His  work 
referred  to,  in  the  present  Commentaries,  is  translated  into  English, 
with  the  title  of  "  Commentaries  on  the  Roman-Dutch  Law." 

Livermore,  Samuel,  of  New  Orleans,  died,  1833.  He  is  the  author  of 
"  Dissertations  on  the  Contrariety  of  Laws." 

Mascardus  Josephus,  an  ecclesiastic  and  Italian  jurisconsult,  born  at 
Sarzana  towards  the  end  of  the  16th  century,  and  died  about  1630. 
He  is  the  author  of  an  extensive  work,  entitled,  "  De  Probationibus 
Conclusiones." 

Merlin,  M.  (de  Doual.)  His  voluminous  works  are  entitled,  "  Reper- 
toire Universel  et  Raisonn6  de  Jurisprudence  ;  "  and  "  Questions  de 
Droit." 

MoRNAC,  Antoine,  bom  near  Tours,  first  appeared  before  the  Parlia- 
ment of  Paris  in  1580,  and  died  1620,     His  works  are  comprised  in 

4  vols.  fol. 

Pardesseus,  J.  M.,   "  Cours  de  Droit  Commercial,"  5  vols.  8vo.  Paris. 

1831. 
Pothier,  Robert  Joseph,  born  at  Orleans,  1699,  and  died    1772,     His 

works  need  not  be  particularly  mentioned. 
Peck,  Peter,  born  at  Zirckzee,  in  Zealand,  1529,  and  died  1589.     His 

works  are  collected  in  one  vol.  fol. 
Puffendorf,  Samuel,  born  in  Upper  Saxony,   1632,  and   died    1694. 

His  works  are  well  known. 


XXIV  LIST   OF   AUTHORS    CITED. 

RoDENBURG  was  a  judge  of  the  Supreme  Court  of  Utrecht,  and  flourished 
about  the  middle  of  the  17th  century.  His  treatise,  "  De  Jure  quod 
oritur  ex  Statutorum  vel  Consuetudinum  Diversitate,"  is  to  be 
found  at  the  end  of  Boullenois's  "  Trait6  de  la  Personality  et  de  la 
R^alite  Des  Loix." 

Stockmans,  Peter,  born  at  Antwerp,  1608,  and  died  1671.  His  works 
are  comprised  in  one  vol.  4to.  \ 

Strykius,  Samuel,  born  1640,  and  died  1710.  His  son  John  Samuel, 
was  born  1668,  and  died  1715.  Their  works,  with  those  of  Rhe- 
Tius,  are  collected  in  14  vols.  fol. 

VoET,  Paul,  (the  father,)  born  at  Heusden,  in  Brabant,  1619,  and  died 
1677.  His  work  on  the  present  subject  is  entitled,  "  De  Statutis  et 
eorum  Concursu." 

VoET,  John,  son  of  Paul,  born  at  Utrecht,  1647,  and  died  1714.  His 
Commentary  on  the  Pandects  contains  a  short  chapter,  "  De  Sta- 
tutis." 


INDEX  TO  CASES  CITED. 


Tlie  figures  refer  to  the  Sections. 


Abell  V.  Douglass,  435 

Abington  v.  N.  Bridgewater     45  a. 
Abraham  v.  Plestoro  415,  419 

Acebal  v.  Levy,        262  a,  285,  319 
Ackworth,  Bain  v.  319 

Adams  z;.  Cordis  314  a. 

Fox  V.  416 

V.  People  625  6. 

Whittemore  v.  571 

Adeline,  The  Ship  423  A. 

Agnew  V.  Piatt  341 

Aiclien,  Hitchcock  v.  608 

Albion  F.  &  L.  Ins.  Co.  v.  Mills  285 
Aldrich  v.  Kenney  608,  609 

Alivon  V.  Furnival      399,  420,  565, 
566,  603,  607 
Allan,  Phillips  v.         338,  339,  342 
Allen,  Buttrickf.  547,608 

James  v.  339 

Alnutt,  Scott  V.  364,  367,  398 

Alpuente,  Barrera  v.  77 

Alves  V.  Hodgson        243,  260,  262 
Amedie,  The  96 

Amedon,  Ward  v.  545 

Amory,  Orr  v.  420,  565 

Anderson  u.  Caunter        513,514  6. 
Andrews  v.  Herriott  558,  567,  637, 

644 

V.  His  Creditors    75,  102, 

241,  259  a. 

V.  Pond       242,  244,  280, 

291,  293  «,  304  a,  558 

Anonymous  (9  Mod.  66)     528,  643 

Anstruther  v.  Adair  143,  171  a, 

276  a. 

V.Chalmers     479  c,  491 

Antelope,  The  96 

Applcton  V.  Campbell  258 

V.  Lord  Braybrook   635  c, 

643 

Archbald,  Harvey  v.  292 

Arell,  Warder  v.  332 

Arglasse  v.  Muschamp  454 

c 


Armroyd,  Williams  v.  592 

Armstrong  v.  Lear  468,  513 

V.  Toler    245,  246,  247, 

249,  250 

Arndt  v.  Arndt  609  a. 

Arnott  V.  Redfern        291,  603,  607 

Atkyns  v.  Smith  515 

Attor.  General  v.  Bonwers  383,  513, 

514  6,  523 

V.  Cockerell         573 

V.  Dimond  383   574, 

515  a. 

V.  Dunn    472,  481  a. 

V.  Hope    383,  514  6. 

V.  Mill  446 

Atwater  v.  Townsend  335,  571,  572 

Bartsch  v.  331,  332 

Augusta  (Bank  of)  v.  Earle  38,  99 

Ins.  Co.  V.  Morton         428 

Austin,  Trecothick  v.  513,  515 


B. 


Babcock  v.  Weston  348 

Bain  v.  Ackworth  319 

V.Whitehaven  &  Furness 

Junction  R.Co.  634  a,  635c. 

Bailey  u.  McDowell  641a. 

Baker  v.  Wheaton  335,  340 

Baldwin  v.  Gray  75,  78 

Willis  V.  258 

Balfour  v.  Scott  465 

Ballantine  v.  Golding  335,  339 

Ballingalls  v.  Gloster  360 

Ballister  u.  Hamilton         284  6,287 

Bank  of  Augusta  v.  Earle      38,  99 

Bank  of  England,  De  la  Chau- 

mette  v.  346,  353,  356 

Bank  of  United  States  v.  Donal- 

]y  242,  272,  558,  567,  577 

Bank  of  Washington  v.  Triplett  361 

Rochester  v.  Gray         643 

Galliopolis  v.  Trimble  575 

Australia  i'.  Harding    606 

V.  Nias  606 


XXVI 


INDEX    TO    CASES    CITED. 


Banks,  Peacock  v.  291 

Barber,  Cockerel)  v.  308,  312 

V.  Root  228,  229 

Barker,  Lanusse  v.  199,  287 

Barney  v.  Patterson  608,  609 

Barrera  v.  Alpuente  77 

Barrett,  Hancock  v.  609 

V.  Barrett  359,  517 

Barrows  v.  West  592 

Bartsch  v.  Atwater  331,  332 

Baltelle,  Lincoln  v.     577,  581,  582 

641 
Bayle  V.  Zacharie  287,341 

Bayley  v.  Edwards  605,  610  a. 

Bayson  v.  Vavasseur  263 

Bearcroft,  Crompton  v.  123  a. 

Beazely  v.  Beazely         88,  106, 117, 

124 
Conway  v.  81,  86,  336 

Beckford  v.  Wade  582 

Becquet  v.  McCarthy  547,  548,  605 
Belisario,  Linclo  v.  108 

Bell,  Tyler  I?.  513,514  6. 

Eeliamont,  Conner  v.  287  a,  293,  305 
Bellows  V.  Ingraham  608,  609 

Bempde  v.  Johnstone      46,  48,  465, 

469 

Bender,  Grimshaw^  v.  319 

Bent  V.  Lauve  272 

Benton  v.  Burgot  609 

Bernes,  Stanley  v.         46,  465,  467 

Berquier,  Desesbats  i'.  38,  468,  473 

Bevan,  Scott  r.  308,313 

Biggs  V.  Lawrence      251,  255,  257 

Bingham,  Ommaney  v.  48,  465 

Bircham,  Currie  Adm'r  v.       514  i, 

515  a,  518 

Bird  V.  Caritat  565,  571 

V.  Pierpont  565 

Pawling  r.  230,  549,  608 

Birmingham  v.  Wallis  258 

Birthwhislle  v.  Vardill  81,  87,  93  o, 

336,  380,  428,  434,  463  481,  483 

Bissell  V.  Briggs         523,  547,  549, 

550,  586,  608,  609 

Black  V.  Lord  Braybrook  635  c,  643 

Blackmore  r.  Brider  115 

Blad  V.  Bamfield  592,  593 

Blades  ex  parte  543 

Blake,  Hull  r.  592  6. 

V.  Williams     329,  380,  396, 

399,  409,  410,  414,  415,  417,  420, 

428 

Blakely,  Newly  v.  582 

Blakes  ex  parte  407 

Blanchard  v.  Russell         22,  35,  38, 

244,  261,  278,  317,  335,  337,  340, 

346,  348,  349,  362 


Bland,  Robinson  v.  38,  123,  a,  199, 

243,  258,  281,  291,  296,  304  a, 

305,  340,  364,  383, 

554,  558,  571 

Bligh,  Obicini  v.  607 

Bliss  V.  Houghton  575 

Bohlen  v.  Cleveland    386,  395,  396 

Bollord  V.  Spencer  516 

Bonham  II.  Badgley  114  a. 

Borden  v.  Borden  513 

V.  Fitch  230,  547,  608 

Boston  (Selectmen  of)  v.  Boyls- 

ton  513,514  5. 

Boston  Type  Foundry  v.  Wal- 

lack  339 

Boucher  v.  Lawson    245,  257,  260, 
595,  598,  604 
Boulanger,  Talleyrand  v.  369 

Boucier  v.  Lanusse  143,  178 

Bourke  v.  Ricketts  313 

Bourne,  Watson  v.  335,  340 

Bowaman  v.  Reeve  528 

Bowles  V.  Orr  697 

Bowrey  v.  Bennett  258 

Bowne  v.  Joy  610  a. 

Boyce  v.  Edwards      286,  296,  305, 

319 
Boyden  v.  Taylor  631 

Boylston,  Dawes  v.  513,  518 

Boynton,  James  v.  565 

Brack  i'.  Johnston  436 

Brackett  v.  Norton      242,  637,  638 
Bradford  v.  Farrand  342 

V.  Harvard  283 

Bradshaw  v.  Heath  230 

Braynard  v.  Marshall  317,  340,  343 
Bradstreet  v.  The  Neptune  Insur. 

Co.      529 
Breadalbane  ?;.  Chandos  276  a. 

Brent  v.  Chapman  582 

Brice,  Canaan  v.         247,  250,  254 
Brickwood  v.  Miller  422 

Bristow  V.  Secquevilie  642 

British  Linen  Co.  v.  Drummond  272, 

581 

Brodie  v.  Barry  428,  463,  465,  469, 

485,  488,  489 

Bros  V.  Jenkins  581 

Brooks's  Syndics,  Dumford  v.      386 

Brown  v.  Brown        479  c,  484,  490 

V.  Duncan  251 

Gordon  v.  490 

Hicks  V.  315,  335 

Potter  V.  315,  326,  332,  335, 

380,  481 

V.  Richardson  268 

V.  Stone  577 

V.  Thornton  260,  635 


INDEX   TO    CASES    CITED. 


XXVll 


Brown  V.  United  States  334 

Bruce  v.  Bruce      44,  46,  362,  380, 

390 

Bruncan  v.  Bruncan's  Keirs        176 

Brush  V.  Curtis  565 

V.  Wilkins  642 

Bryan  v.  McGee  514  6. 

Buchanan  v.  Deshon  430 

V.  Rucker  547,  586 

Smith  V.    342,  348,  408, 

564 

Budge,  Montgomery  v,  281 

Bulger  V.  Roche  577 

Bull,  Rex  w.  627,628 

Bump  V.  Smith  46 

Burn  V.  Cole  513 

Burgess  v.  Burgess  1 14  a. 

Burnham,  Stearns  v.  358,  513 

V.  Webster       598,  599  a. 

Burrows  v.  Jemino       243,  333,  598 

Burton  v.  Fisher  43 

Bush,  Mather  v.  339 

Butler  V.  Delaplaine  96 

'         V.  Gastrin  114,  115 

Harper  v.  359 

V.  Hopper  96 

Buttrick  v.  Allen  547,  608 

Burton  ex  parte  339 

Burwell,  Harrison  v.   114,  115,  116 

Byrne  v.  Walker  565 


Calbraith,  Seabright  v.  332 

Caldwell  v.  Van  Vlissengen        541 

Calt  V.  Patridge  610  a. 

Cambioso  v.  Moffat     246,  252,  255 

Campbell,  Appleton  v.  258 

East  India  Co,  v.        627 

Hall  V.  18,  390 

V.  Tousey  513,  514, 

514  6. 

Canaan  v.  Brice  247,  250,  254 

Canfield,  Scoville  v.  621 

White  V.  339 

Caritat,  Bird  v.  565,  571 

Carleton,  Winthrop  v.  296 

Carnegie  v.  Morrison,     298,  304  a, 

642 
Carr  v,  Shaw  353 

Carrol  v.  McDonough  610  a. 

Carroll,  Guinness  v.  606 

V.  Waters  322 

Carter  v.  Carter  228 

Casey  u.  Harrison  610  a. 

Cash  i;.  Kennion  291,309 


Cassin,  Touro  v.  243 

Catesby's  case  270 

Caiherwood,  James  v.        260,  262, 

318 
Catlin  V.  Bell  254 

Catterall  v.  Catterall  79  a. 

Cavan  v.  Stuart  547,  586 

Chalmers,  Anstruther  v.  479  c. 

491 
Champant,  Ranlagh  y.     287  a.  291, 

296 

Champlin  v.  Tilley  513 

Chandler,  Fisk  v.  386 

Chanoine  v.  Fowler  641  a. 

Chapel,  Taimadge  v.  522 

Chapman,  Brent  v.  582 

V.  Robertson       270,  272, 

287  a.  293,  424,  427,  428,  447 

Charters  v,  Cairnes  242,  332 

Chewning  v.  Johnson    399  a,  400  a. 

Chick  «.  Ramsdale  115 

Church  V.  Hubbart      637,  G39,  640 

641,  641  a,  642,  643 

Clarke  v.  Cochran  260 

V.  Graham  428 

Clark's  Ex'ors  v.  Cochran      635  d. 

Clegg  V.  Levy  260,  262,  318 

Clement,  Yrissari  u.  291 

Cleveland,  Bohlen  v.  386,  395 

396 

Clugas  V.  Penaluna     251,  255,  257 

Cobb,  Dix  V.  396 

Cochrane,  Forbes  v.  96  a,  259 

Cockell  V.  Gray  270 

Cockerell,  Attorney-General  v.  573 

V.  Barber  308,  312 

Cogswell  V.  Dolliver  635 

Coit  V.  Millikin  643 

Commonwealth  v.  Aves        96,  259 

V.  Deacon  628 

V.  De  Long- 

.  champs  628 

V.  Green  82,  620, 621, 

628 

V.  Griffith  516 

V.  Holloway  96 

V.  Ferryman  115 

Comparet  v.  Jernegan  641  a. 

Conner  v.  Bellamont       287  a,  293, 

305 
Consequa,  Fanning  v.         281,291, 

296 

V.  Fanning  291,  297 

r.  Willing  242,291, 

307,  671,  637 

Conway  v.  Beazely         81,  86,  336 


XXVlll 


INDEX    TO    CASES    CITED. 


Conway,  Stapleton  v.         288,  293, 
305,  313 
Coolidge  V.  Poor  283 

V.  Ingle  259 

Coppin  V.  Coppin         428,  435,  474 
Cotlingham,  ISeal  v.  407 

Courtois  V.  Carpenter  272,  309,571 
Cowper,  Wills  v.        365,  428,  435, 
474,  483  a. 
Cox  &  Dix  V.  U.  S.  281,  2D0 

Craigie  r.  Craigie  47 

Crandall,  Robinson  v.  517 

Cranston  v.  Johnston  514,  547 

Crompton  v.  Bearcroft  123  a. 

Crosby,  U.  States  v.  428,435,  474, 
483  a. 
Croudson  v.  Leonard  592 

Crowninshield,  Sturgis  v.    335,  580 
Le  Roy  v.  263, 

267,  342,  577,  580,  582 
Cruger,  M'Candish  v.  319 

Cummings  v.  Banks  609 

Curling  v.  Thornton  465 

Currie,  adm'ru.  Birchani         514  b, 
515  a,  518 
Curtis,  Brush  r.  565 

Greenwood  r.      38,  98,  114, 
116,244,252,  258,  259 
V.  Hutton         424,  428,  474, 
479  a. 
Cuthbert,  Royal  Bank  of  Scot- 
land V.  408,  423 
Cutter  V.  Davenport  305,  428,  435, 
483  a,  523 
Cutts  V.  Haskins  46,  506 

D. 

Dallison,  Wiggles  worth  v.  270 

Dalrymple  v.  Dalrynnple  76,  81,  82, 

108,  113,209,  274,  642 

Danforth  v.  Penny  565,  592  a. 

Dangerfield  v.  Thurston    .  513 

Danville  v.  Putney  47 

Darby  v.  Mayer       428,  435,  483  a. 

D'Arcy  v.  Ketchum  609 

Davenport,  Cutler  v.  365,  428,  435, 

483  a,  523 

Davis,  Selkrig  v.         159,  186,  364, 

395,  398,  400,408,  423,  428,  543 

V.  Estey         513,  514  b,  524 

Gale  V.  178 

V.  Jaquith  390 

V.  Peckars  608 

V.  Smith  609 

Dawes  r.  Boylston  513,518 

i'.  Head  513,514/^,524 

Day,  ScholfieJd  v.   291,  305,  311  a. 

Deacon,  Commonweallh  V.  628 


De  Bernales,  National  Bank  of 

St.  Charles  v.  565 

De  Bonneval  v.  De  Bonneval     472, 

481  a. 

De  Caix,  McCarthy  v.        106,  117, 

218,  225 

De  Couche  v.  Savatier  88, 89,  145  a, 

152,  178,  276,  481,  577,  581, 

582  a. 

De  la  Chaumette  r.  the  Bank  of 

England  346,  353,  356 

Delafield  v.  Hurd  643 

De  la  Vega  v.  Vienna        272,  550, 
571,  577,  582  a. 
Delegal  v.  Naylor  308,  313 

De  Longchamps,  Coreimon'th  17.  628 
Delvalle  v.  Plomer  263 

Depeau  v.  Humphreys       260,  298, 
304  a,  305,  314 
De  Rottenham,  Murray  v.  348 

Descadillas  v.  Harris  332 

Desesbats  v.  Berquier   38,  468,  473 
Deshon,  Buchanan  v.  430 

De  Sobry  v.  De  Laistre      242,  380, 
468,  481,  524,  636, 643 
Dewar  v.  Span  287  a,  293,  305 

De  VVeitz  v.  Hendricks  259 

Dewitt  V.  Burnett  539,  547 

De  Wolf  t).  Johnson  287  a,  291. 
293,  305 
Dickey,  Morrill  v.  499,  504  a,  514 
Dickinson's  Adm'rs  v.  McCravv  513 
Dimick  v.  Brooks  609 

Dix  V.  Cobb  396 

Dixon's  Exo'rs  v.  Ramsay's 

Exo'rs  468,  518 

Dixon  V.  Ramsay  358 

Dobrey  ejc  parte  408 

Doe  dem.  Lewis  v.  McFarland    509 

Doe  dem.  Birthwistle  v.  Vardill  81, 

87,  93  0,  336,  380, 428, 434, 481, 

483 

Dolliver,  Cogswell  v.  635 

Don  V.  Lippman  278,  280,  282,  317, 

329,  548, 548  a,  550,  557,  558, 

574  c,  577,  579,581,582,582  0, 

5S6,  603,  635  J. 

Doolittle  V.  Lewis     513,  514  ^i,  523 

Dormay,  In  re  642 

Dorsey  v.  Dorsey  205,  230  a. 

V.  Maury  609 

Dos  Santos  (Jose  Ferreira)         628 

Douglas  V.  Forrest  548,  607 

Doulson  V.  Mathews  554 

Dowdale's  Case  514  a,  514  b. 

Drake,  Saunders  v.  313,  479  b. 

Drummond  V.  Drummond         266  a, 

487,  529 


INDEX   TO    CASES    CITED. 


xxii^ 


Drummond,  British  Linen  Co,  v.  272 

581 
Dudley  v.  Warde  582 

Duke  of  Brunswick  v.  King  of 

Hanover  542  a, 

Dumford  v.  Brook's  Syndics  386 
Dunbar  v.  Dunbar  483  a. 

Duncan  v.  United  States  290 

Dundas  v.  Bowler  315,  435 

V.  Dundas  435 

Dungannon  v.  Hackett  311 

Dunlap,  Innes  v.  354,  565 

Duntze  v.  Levett  217 

Durand,  Attorney-General  v.  316 
Durant,  Lamb  v.  394 

Durgee,  Mills  v.  547 

Dutch,  Richards  v.  513 

Dutch  W.  L  Co.  V.  Moses  565 
Dwight,  Pearsall  v.  38, 242, 243,  558 
Dyer  v.  Hunt  242,  243,  335 

V.  Smith  640 


E. 


East  India  Co.  r.  Campbell        627 

Edmanstone  et  al.  98,  221 

V.  Lockhart  217 

Edwards,  Boyce  v.     286,  296,  305, 

319 

Van  Schaick  v.  243, 

287  a,  298 

Ekins  V.  East  India  Co.     291,  296, 

307,  311 

Elliot  V.  Lord  Minto        266  a,  366, 

424,  428,  484 

Ellicotw.  Early  333,342,348 

Ellfesson,  Imley  v.  571 

Elmendorf  u.  Taylor  277 

Embree  v.  Collins  610  a. 

Estey,  Davis  v.         513,  514  i,  524 

Eustace,  Kildare  v.  544 

Evans  v.  Grey  334 

V.  Tarleton  609 

V.  Tatera  514  a,  514  b. 

Eve,  Hannay  V.  246 

Morris  v.  272,  338,  339 

Everhart,  Thrasher  v.        242,  244, 

558,  566,  631,  637 

Ewer  t'.  Coffin  549 

Ewin,irtre  379,380 

Exeter  v.  Brighton  43 


F. 

Fabrigas,  Mostyn  v. 

Fairlie,  Logan  v. 
c* 


276,  554, 

637,  642 

513,  514  i. 


Fairlie,  Lowe  v.  513 

Fales,  Musson  v.  259 

Fanning  u.  Consequa  281,291, 

296 
Consequav.         291,297 
Farmers  &  Mechanics  Bank 

i;.  Haight  643 

Farrant,  Bradford  v.  342 

Faubert  v.  Trust       143,  145  a,  276 
Fftiwick  V.  Sears  513,  558 

Ferguson  v.  Flower  322 

V.  Mahon  547,  603 

Field  V.  Gibbs  608 

Fisk  V.  Chandler  386 

Fitch,  Borden  v.  230,  547,  608 

Fitz  James,  Melan  v.  267,  568,  570 
Flack  V.  Holm  569 

Fletcher,  Lever  v.  257 

Planche  v.  245,  257 

Foden  v.  Sharp  296,  320 

Folliott  V.  Ogden         550,  565,  566, 

620 
Forbes  v.  Cochran  96  a,  259 

Odwin  V.  84 

Forrest,  Douglas  v.  548,  607 

Ford's  Curators  v.  Ford      195,  198 
Foster  v.  S inkier  396 

V.  Wassail  544 

V.  Hall  43 

Flower,  Tourton  «.  513 

Fox  V.  Adams  416 

Foxes  V.  Johnes  258 

France,  In  re  96 

Frances,  (The)  48 

Fraser,  Sinclair  v.  603,  605 

Frazier  v.  Warfield  280,  320 

Frey  v.  Kirk  342 

Freundschaft,  (The)  48 

Fry,  Yeaton  v.  643 


G. 


Galbraith  v.  Neville  605,  606 

Gale  V.  Davis  178 

Gale,  Lang  v.  270 

Gambler  v.  Gambler  463  a. 

Garcia  del  Rio,  Jones  v.  259 

Garlick,  Tenton  v.  547 

Garnier  v.  Poydras  66  a. 

Garvan,  Roach  v.  595,  604 

Gastrin,  Butler  u.  114,  115 

Gaylord,  Stevens  v.  513,  514  b, 

520 

Gelston,  Hoytu.  592 

V.  Hoyt  593 

Geyer,  Ingraham  v.  416,  420,  465 

Gibbs  V.  Howard  575 


XXX 


INDEX   TO    CASES    CITED. 


Gibbs,  Field  v. 
Oilman  v.  Brown 
Girolamo  (The  Ship) 
Glass,  McNiel  v. 
Gleason  v.  Dodd 
Glenn  v.  Smith 


608 
322  b,  401 
423  h. 
389 
609 
513 


Gloster,  Ballingalls  v.  360 

Goldincf,  Ballantine  v.         335,  339 
Good,  Hall  1^  115 

Goodwin  v.  Jones        380,  404,  409, 
420,  428,513,  514  J,  523,  565 
Gordon  v.  Brown  484,  490 

V.  Pye  98,  217 

Gore,  Harvard  College  v.       45,  47 
Grace  (The  Slave)  case  of    59,  96, 

96  a. 

Graham,  Milne  v.  356 

Clarke  v.  '  428 

Grant  V.  Dalliber  47 

r.  Healy        284  a,  287,  297, 

311a. 

V.  McLachlin  592 

Gratton  v.  Appleton  468 

Gravillon  v.  Richards,  Ex'or.      513 

Gray,  Baldwin  r.  75,78 

Evans  w.  334 

Cockell  V.  270 

Shelby  v.  582 

Green  v.  Sarmiento    335,  342,  348, 

608 

Commonwealth  v.    92,  620, 

621,628 

V.  Windham,  43 

Greenwade  v.  Greenwade  292 

Greenwood  v.  Curtis      38,  98,  114, 

116,  244,  252,  258,  259 

Griffith,  Commonwealth  v.  516 

Grimshaw  v.  Bender  319 

Griswold  v.  Pitcairn  598,  643 

V.  Waddington  259 

Guestier,  Hudson  v.  592 

Guier  v.  O'Daniel  46,  380,  506 

Guinness  v.  Carroll  006 


H. 


Hackett,  Dungannon  v.  311 

Haile,  Mason  v.  339,  340 

Ilallowell  V.  Saco  44 

Hall  V.  Campbell  18,  390 

V.  Good  115 

V.  Odber  599  a,  603,  606 

V.  Williams         586,  608,  609 

White  V.  545 

V.  Board  man  335 

Hancock  v.  Barrett  609 

Hannay  V.  Eve  246,251 


Hapgood,  Jennison  i;.         47,481a, 

513 

Harding  v.  Allen  46 

Harford  v.  Higgins  '  79 

V.  Morris  123  a. 

Harmony,  (The)  45 

Harper  v.  Butler  358,  359 

V.  Hampton  428 

V.  Stanborough'  473  a. 

Harris  r.  Hicks  115 

Harrison  v.  Burwell     114, 115, 116 

V.  Nixon  468,  474 

V.  Sterry      263,  272,  323, 

416,  422,  524 

V.  Edwards  575 

Hart  V.  Granger  610  a. 

Harteau  v.  Harteau  46,  224  a. 

Harvard,  Bradford  v.  283 

Harvard  College  v.  Gore         45,  47 

Harvey  v.  Archbald  292 

V.  Richards  379,  468, 

481,  513,  518, 524 

Haskins,  Cutts  v.  46,  506 

Hazlehurst  v.  Kean  307 

Head,  Dawes  V.         513,  514  ^»,  524 

Healy  v.  Gorman  291 

Hempstead  v.  Reed  335,  6ll 

Hendricks,  De  Weitz  v.  259 

Henry  v.  Adey  643 

V.  Sargent  625  o. 

Herber  v.  Cook  605 

Herbert  u.  Herbert  79,  113 

Jerningham  v.  366 

Herriot,  Andrews  v.  558,  567, 

637,  644 

Hicks  V.  Brown  315,  335 

Higgins,  Lacon  v.  79,  113 

Hill,  Packard  v.  641 

Himeley,  Rose  v,  590,  592 

Hinckley  v.  Morean     339,  570,  571 

Hinsdale,  Meredith  v.  567 

Hitchcock  V.  Aicken  608 

Hobart,  Titus  v.  339,  571,  572 

Hodgson  V.  Temple  254 

Alves  V.        243,  260,  262 

Hogg,  Lashley  v.         143,  171. 187, 

465 
Holbeck  v.  Leeds  47 

Holloway,  McNeilage  v.  359 

Holm,  Flack  u.  569 

Holman  v.  Johnson      38,  246,  251, 

257 

638 

554,  307 

V.  Holmes  272 

V.  Jennison  628 

V.  Remsen       38,  348,  379, 

380,  395,  396,  399,  405,  406, 


V.  King 
Holmes  v.  Barclay 


INDEX    TO    CASES    CITED. 


XXXI 


Holmes  v.  Remsen,  continued. 

408,  409,  414,  415,  417,  418, 

420,  428,  468,  474,  513,  524, 

565, 592  a. 

Holvoke  V.  Haskins  46,  506 

Hooker  v.  Olmstead     513,  515,  523 

Hooper,  Lacon  r.  270 

Hopkins  v.  Hopkins  528 

MedUury  v.  242,  577 

Sherrill  v.  340,  346 

Hopper,  Butler  v.  96 

Hosford  t'.  Nichols  287  «,  291, 

365,  428,  435,  483  a,  642 

Houc^hton  V.  Page      242,  243,  291, 

335 

Houlditch  V.  Donegal  603 

Howard,  Gibbs  v.  575 

Hoxie  V.  Wright  608,  G09 

Hoyt,  Gelston  v.  592 

V.  Gelston  593,  602 

Hozier,  Peck  v.  339,  558,  571 

Hubbart,  Church  v.     637,  639, 640, 

641,  642,  643 

Huber  «.  Steiner      .   577,581,582 

Hudson  V.  Guestier  592 

Hughes,  Langton  v.  254 

McDaniel  v.  592  a. 

Hull  V.  Blake  542  a. 

Humphreys,  Depeau  v.       260,  298, 

304  a,  305,  314 

Hunt,  Dyer  v.  242,  243,  335 

Hunter,  Phillips  v.     380,  390,  404, 

405,  406,  428,  592  a,  599, 

605 

r.  Potts  335,  337,  380, 

390,  398,  404,  406,  407, 

428,  481 

Hard,  Delafield  v.  643 

Hutchinson,  Rex  v.  627 

Huthvvaite  v.  Phaire    358,  515,  518 

Hyle  V.  Goodnow  558 

Hylton  V,  Brown  43 


Ilderlon  r.  Ilderton  113 

Imley  v.  Elfessen  571 

Indian  Chief,  (The)  47,  48 

Inglee,  Coolidge  v.  259 

Inglis  V.  Underwood  403 

Ingraham,  Bellows  v.  608,  009 

V.  Geyer     416,  420,  565 
Inhabitants  of  Brampton ,  King  v.  1 18 
of  Hanover  v.  Turner 

228 
Innes  v.  Dunlop  351,  565 

Irby  V.  Wilson  46 

Isabella  v.  Pecot  639,  642 


J. 


Jacks  V.  Nicholls  279 

V,  Petrie  545 

V.  Wynne       260,  202,  318 

Jamerin,  Middleton  v.       81,  n.  113 

James  v.  Allen  339 

V.  Boynton  565 

V.  Catherwood  260,  262,  318 

Jacfues  I'.  Withy  246 

Jaquin,  Davis  v.  390 

Jauncey  v.  Seeley  518 

Jefferson,  Livingston  v.  554 

V.  Washington  43 

Jeffrey  v.  McTaggart  354,  565 

Jemino,  Burrows  v.     243,  333,  598 

Jennings  v.  Throgmorton  258 

Jennison  v.  Hapgood  47,  481  a,  513 

J erningham  V.  Herbert  366 

Johnnes,  Foxes  v.  258 

Johns,  United  .States  u.  643 

Johnson,  DeWolf  v.       287  a,  291, 

293,  305 

Holman  v.      38,  246,  251, 

257 

1).  Hudson  254 

Lloyd  V.  258 

Raymond  v.  565 

Johnston,  Cranston  v.  544,  547 

Johnstone,  Bempde  v.    46,  48,  465, 

469 

Jones  V.  Garcia  del  Rio  259 

Goodwin  V.       380,  404,  409, 

420,428,  513,514  6,523,  565 

V.  Hook's  Administrator    558 

V.  Randall  258 

Robinson  v.  593 

Josephine,  (The)  48 

Judd  V.  Porter  339 


K. 


Kane,  Van  Reimsdyk  v.    243,  263, 
281,  335,  558,  577 
Kay,  Mure  v.  627 

Kean,  Hazlehurst  v.  307 

Kearney  v.  King  272  a,  313,  317 
Kennedy  v.  Earl  of  Cassilis  595, 604 
Kenney,  Aldrich  v.  608,  609 

Kennion,  Cash  I'.  291,309 

Kenny  v.  Clarkson  642 

Kentucky  v.  Bassford  244,  258  a. 
Kerr  v.  Moon  428,  435,  483  a,  513 
Ketcham,  Thompson  v.  82,  241, 
281,  291,  332 
Kibblewhite  v.  Rowland  217 

Kildare  v.  Eustace  544 


XXXll 


INDEX   TO    CASES    CITED. 


Kimburley,  Rex  v.  627 

King  V.  Harman's  Heirs         267  a. 
v.  Inhabitants  of  Brampton  118 
King  of  Spain  v.  Machado  277 

King  of  Two  Sicilies  v.  Willcox  621 
Kirk,  Frey  v.  342 

Knight,  Tiie  State  v.  621 

Kohn  V.  Schooner  257 

Koster  v.  Sapte  481  a. 

Kraft  V.  Wickey  499,  504  a. 


Lacon  v.  Higgins  79,  113 

V.  Hooper  270 

La  Jeune  Eug6nie  (The  Ship)    243 

Lamb  v.  Durant  392 

Lambe  v.  Smythe  43 

Lanfear  v.  Sumner       386,  389,  392 

Lang  V.  Gale  270 

V.  Whitlaw  436 

Langdon  v.  Potter  513 

Langton  v.  Hughes  254 

Lansdowne  v.  Lansdowne  272,  288, 

479  wj. 

Lanusse  v.  Barker  199,  287 

Boueier  v.  143,  178 

Lapice  v.  Smith  291 

Lashley  v.  Hogg         143,  171,  187, 

465 

Latour  t).  Teesdale  118,120 

Lawrence,  Biggs  v.     251,  255,  257 

V.  Lawrence  513 

V.  Smith  258 

Lawson,  Boucher  v.  245,  257,  260, 

595,  598,  604 

Lear,  Armstrong  v.  468,  513 

Le  Breton  v.  Nouchet  78,  178,  180, 

182,  198 

Le  Chevalier  v.  Lynch    337,  610  a. 

Lee  V.  Moore  513 

V.  Wilcocks  308 

Leeds  v.  Freeport  46 

Leeman,  Talbot  v.  640 

Leffingwell  v.  White  270 

Legg  V.  Legg  637 

Leonard,  Croudson  v.  592 

Le  Roy  v.  Crowninshield  263,  267, 

342,  577,  580,  582 

V.  Beard  567 

Lever  v.  Fletcher  257 

Levett,  Duntze  v.  217 

Levy,  Cleggu.  260,262,318 

Lewis,  Doolittle  v.     513,  514/*,  523 

V.  Mew  610  a. 

V.  Owen  319,  333,  342 

V.  Wallis  395,  398 

V.  Wilder  606 


Lexington,  W.  Cambridge  v.      89, 
113,  123  5. 
Lickbarrow  v.  Mason  394 

Linclo  V.  Belisario  108 

Lightfoot  V.  Bickley  522 

V.  Tenant     251,253,257 
Lincoln  v.  Battelle      577,  581,  582, 

641 

Lindsay,  Tovey  v.      '88,  106,  117, 

218,  225 

Livingston  v.  Jefferson  554 

Lloyd  V.  Johnson  258 

V.  Scott  287  a. 

Lockhart,  Edmonstone  v.  217 

Lodge  V.  Phelps  357,  558 

Logan  t).  Fairlie  513,514  6, 

Lolley's  Case  86,  88,  106,  117, 

124,  218,  225 

Lord  Baltimore,  Penn  v.  544 

Louis  V.  Cabarrus  96 

Louisville  R.  R.  Co.  v.  Letson  580 

Lowe  V.  Fairlie  513 

Ludlow  V.  Van  Rensselaer        257, 

260,  281 

Lundy's  Case  627 

Lunsford  v.  Coquillon  96 

Lynch,  Powers  v.        281,  314,  315 

Warren  v.  567 


M. 


Machado,  King  of  Spain  v.  277 
Magoun  v.  N.  England  Ins.  Co.  592 
Maguire  v.  Maguire  205,  230  a. 
Mahorner  u.  Hooe  472  a. 

Maine  Ins.  Co.,  Richardson  v.  259 
Malcolm  v.  Martin  479  b. 

Male  V.  Roberts     82,  89,  241,  332, 

637 
Malpica  v.  McKown,  285,  286  b, 
286  c. 
Maltass  v.  Maltass  43 

Marlow,  Wadham  v.  404 

Marshall,  Braynard  v.  317,  340,  343 
Martin  v.  Franklin  311  a. 

V.  Nicholls  606,  607 

Mary  (The  Ship)  592 

Mason  v.  Haile  339,  340 

r.  Mason  630  a. 

Lickbarrow  v.  394 

Massie  v.  Watts  545 

Mather  v.  Bush  339 

Mathews,  Uoulson  v.  554 

Mauie  V.  Murray  610  a. 

Mawdesley  v.  Park  412 

Mayer,  Darby  v.  428,  435,  483  a. 
McCaiih,  Becquet  r.  547,  548,  605 
McCandish  i>.  Cruger  319 


INDEX   TO    CASES    CITED. 


XXXlll 


McCarthy  v.  De  Caix  106,  117, 
218,  225 
McCormick  v.  SuUivant  428,  435, 
474,  483  a. 
McCraw,  Dickinson's  Adminis- 
trators V.  513 
McDaniel  r.  Hughes  592  a. 
McEImoyle  v.  Cohen  524,  582  a,  609 
I\IcFarland,  Doe  dem.  Lewis  v.  509 
Mclntyre  v.  Parks  251,  287 
McLachlan,  Grant  v.  592 
McMenomy  v.  Murray  335,  339,  348 
McNeilage  v.  Holloway  359 
McNeil  V.  Glass  389 
McQueen  v.  Middletown  Man. 

Co.  565 

McRae's  Adm'rs  v.  McRae     514  b. 
McRay  v.  Mattoon  566 

McTaggart,  Jeffrey  v.  354,  565 

McVicker  v.  Beedy  549,  599a,  609  a. 
Mead  v.  Merriit  545 

Peck  V.  523 

Smith  V.  242,  279,  296 

Medbury  v.  Hopkins  242,  577 

Medrazo  v.  Willes  96  a,  259 

Medwayu.  NeedhamllS,  116, 123i. 
Meeker  v.  Wilson  386 

Meigs,  Penniman  v.  348 

Melan  v.  Fitz  James    267,  568,  570 
Merchants  Bank  v.  Bank  of  U. 

States  399  a,  400  a. 

Meredith  v.  Hinsdale  567 

Merrick,  Springfield  Bank  v.       246 

Middlesex  Bank  v.  Putnam        586, 

599  a. 

Middleton  v.  Janverin  81,  113 

Mill,  Attorney-General  v.  446 

Miller's  Estate,  Case  of      513,  524 

Milles,  Brickwood  v.  422 

Mills  V.  Durgee  547 

Patterson  v.  259,  285 

Milne  v.  Graham  356 

V.  Moreton       283,410,411, 

414,  415,  420,  428,  524,  565 

Mingay,  Snaith  v.  289 

Mitchel  V.  Bunch  545 

Moffat,  Cambioso  v.     246,  252,  255 

Moley  V.  Shattuck  593 

Montgomery  v.  Budge  291 

Moon,  Kerr  t'.  428,  435,  483  a,  513 

Moore  v.  Budd  465,  468,  481 

V.  Davell  467 

Lee  V.  513 

V.  Wilkins  43 

Morean,  Hinkley  v.  339,  570,  570  a. 

Moreton  v.  Milne  399 

Morgan  v.  McGhee  113 

Price  V.  391 


Morrell  v.  Dickey 
Morris  v.  Eves 

Harford  v. 
Morrison,  Quelin  v. 
Morrison's  Case 
Mostyn  v.  Fabrigas 

Muller  V.  Morris 
Mumford,  Norris  v. 
Munroe  v.  Douglas 
V.  Munro 
V.  Saunders 


499,  504  a,  514 

272,  338,  339 

123  a, 

408 

399 

276,  554,  637, 

642 

291 

386 

481,  592,  603 

43,  472 

87  a,  93  rf, 

105  a,  113 


Mure  V.  Kaye 

Murphy  v.  Murphy 

Murray  v.  De  Rottenham 
V.  Murray 
Starbuck  v. 

Muschamp,  Arglasse  v. 

Musson  V.  Fales 

N. 

Nash  V.  Tupper 
Nat  V.  Coon 
Naylor,  Delegal  v. 
Neale  v.  Coitingham 
Needham,  Med  way  v. 

Neville,  Galbraith  v. 
Newby  v.  Blakely 
Newell  V.  Newton, 
Niblett  V.  Scott 
Nichols,  Hosford  v.  287  a, 
428,4 
Martin  v. 
Niles,  Wilson  v. 
Norris  v.  Mumford 
Norton,  Brackett  v.     242 
Nouchet,  Le  Breton  v.  78 

Nourse,  Walsh  v. 
Novelli  V.  Rossi 
Noyes  v.  Butler, 

O. 


14- 


627 
178 
348 
565 
608 
544 
259 


558 

479^. 

308,  313 

407 

113,  116, 

123  b. 

605,  606 
582 

610  a. 

609 

,291,365, 

35,  483  a. 

606,  607 
609 
386 

,  637,  638 
178, 180, 
182,  198 
335,  339 
269,  607 
586,  609 


Obicini  v.  Bligh  607 

O'Callagan  v.  Thomond      355,  566 
Ocean  Ins.  Co.  v.  Portsmouth 

Marine  Railway  Co.     592  a. 


O'Daniel,  Guier  v. 
Odwin  V.  Forbes 
Ogden,  Folliott  v. 


46,  380,  506 

84 

550,  556,  566, 

620 

V.  Saunders    266,  323,  335, 

340,341,343,346,398,416, 

421,  570 


XXXIV 


INDEX   TO    CASES    CITED. 


Ohio  Insur.  Co.  v.  Edmondson  244, 

327  a,  558,  568 

O'Keefe,  Quin  r.  335,  339 

Olivier  v.  Townes       386,  388,  410, 

416,  481,  524 
Olmstead,  Hooker  v.  513,  515,  523 
Ommaney  v.  Bingham  48,  465 

Orcutt  V.  Ormes  521 

Ordronaux  v.  Rey  160,  184 

Orr  V.  Amory  420,  565 

Ory  r.  Winter     317,  332,  340,  346 
Otto,  Lewis  ex  parte  89 

Owen,  Lewis  v.  319,  333,  342 

Owings  V.  Hall,  9  Peters,  627.    See 

Agency. 
Oxholm,  Wolff  V.        334,  348,  350, 

565,  566,  620 


P. 


Packard  r.  Hill  641 

Page,  Houghton  v.     242,  243,  291, 

335 
Paradise  v.  Farmers  and  Me- 
chanics Bank  of  Memphis  400  a. 
Parish  v.  Seton  409 

Park,  Madesley  v.  412 

Patrick,  Shedden  v.  87  a. 

Patterson,  Barney  v.  608 

V.  Gaines  113 

Wallis  V.  415,  416 

Pattison  v.  Mills  259,  285 

Pawling  V.  Bird's  Ex'ors  230,  549, 

608 
Peacock  u.  Banks  291 

Pearsall  v.  Dwight       38,  242,  243, 

558 

Peck  V.  Hozier  339,  558,  571 

V.  Mead  523 

Peckars,  Davis  v.  608 

Peckham   v.  North    Parish   in 

Haverhill  565 

Pellicat  V.  Angell  251,  254 

Penaluna,  Clugas  v.    250,  255,  257 

Penn  v.  Lord  Baltimore  544 

Penniman  v.  Meigs  348 

Percival  v.  Hickey  423  h. 

Perkins,  W^alker  v.  258 

Perlreis  v.  Tondear  119 

Peters  v.  Warren  Ins.  Co.  592,  593 

Petrie,  Jackson  v.  545 

Phelps  V.  Holker  549 

V.  Kent  292 

Lodge  V.  357,  558 

Taylor  v.  549,  598 

Phillips  V.  Allan  338,  339,  342 

V.  Gregg  113 

V.  Hunter      380,  390,  404, 


Phillips  V.  Hunter,  continued. 

405,  406,  428,  592  a,  599,  605 
V.  Kingfield  43 

Phipps  V.  Earl  of  Anglesea  288 
Pickering  v.  Fiske  625  a,  634  a. 
ViC({\xe\,  ex  parte  513 

V.  Swan  539,  547 

Pierpont,  Bird  u.  565 

Piers  V.  Piers  108 

Pierson  v.  Garnet  779  b. 

Pilkington  v.  Commissioners  of 

Claims  313  a. 

Piper  V.  Piper  380,  481 

Pitcairn,  Griswold  v.  598,  643 

Planche  v.  Fletcher  245,  257 

Plestoro,  Abraham  V.  415,419 

Plomer,  Delvalle  ii.  263 

Plumraer,  Webb  v.  270 

V.  Woodburne    547,  548, 
599  a. 
Pomeroy,  Slacura  v.  307,  314,  317, 

346 

Pond  V.  Makepiece  358 

Poor,  Coolidge  v.  283 

Tappan  v.  337,  339 

Pope  V.  Nickerson  272,  286  cc. 

Potlinger  v.  Wightman         46,  506 

Potter  V.  Brown         315,  326,  332, 

335,  380,  481 

Langdon  v.  513 

V.  Titcomb  424 

Potts,  Hunter  u.  335,337,380,390, 

398,  404,  406,  407,  428,  481 

Powers  V.  Lynch         281,  314,  315 

Powles,  Thompson  v.         259,  291, 

305 

Pratt  V.  Adams  292 

Prentiss  v.  Savage     270,  281,  314, 

335,  345,  351 

Price  V.  Dewhurst       465,  481,  603 

V.  Morgan  391 

Pulver,  Shultz  r.  481,515 

Putnam  v.  Johnson  43 

V.  Putnam    89,  113,  123  i. 

Pye,  Gordon  v.  98,  217 


Q. 

Quelin  v.  Moisson 
Quin  V.  O'Keefe 

R. 


408 
335,  339 


Ralph  V.  Brown  610  a. 

Ramsay  v.  Stevenson  386,  392 

Ramsay's  Ex'ors,  Dixon's  Ex- 
ecutors V.  468,  513 
Randall,  Jones  v.  258 


INDEX    TO    CASES    CITED. 


XXXV 


Ranelagh  v.  Cliampant  287  a,  291, 

296,  313 

Rathbone  v.  Terry  608 

Raugeley  v.  Webster  549,  598 

Rawlinslon  v.  Stone  359 

Ray  V.  Sherwood  115 

Raymond  v.  Johnson  565 

Redfern,  Arnott  v.       291,  603,  607 

Reed,  Waynell  v.  251,  255 

Reeve,  Bowaman  v.  528 

Regina  w.  Chad  wick  114  a,  115 

V.  Wye  114  a. 

Remsen,  Holmes  v.      38,  348,  379, 

380,  395,  396,  399,  405,  406, 

408,  409,  414,415,417,418,  ' 

420,428,468,474,  513,524, 

565,  592  a. 

Rex  «.  Bull  627,628 

V.  Hutchinson  627 

V.  Kimburley  627 

v.  Lolley         86,88,106,117, 

124,  218,  225 

Richards  v.  Dutch  513 

Richards,  Harvey  v.  379,  468,  481, 

513,  578,  524 

V.  Richards  359 

Richardson,  Brown  v.  268 

V.  Leavitt  399  a,  400  a. 

V.  Maine  Ins.  Co.     259 

Ricketts,  Bourke  v.  313 

Riley  v.  Riley  513 

Ripple  V.  Ripple  603 

Ritchie  v.  Smith  254 

Roach  V.  Garvan  595,  604 

Roberdeau  v.  Rous  545 

Roberts,  Male  v.    82,  89,  241,  332, 

637 

Robinson  v.  Bland     38,  123  a,  199, 

243,  258,  281,291,296, 

304  a,     305,    340,    364, 

383,  554,  558,  571 

V.  Campbell  566 

V.  Crandall  517 

V.  Danchy  637,  638 

V.  Jones  593 

V.  Ward's  Ex'ors      549 

Root,  Barber  v.  228,  229 

Rose  V.  Himely  590,  592 

V.  Ross  93  s. 

V.  McLeod  342 

Ross,  Solomon  v.  398,  407 

Rossi,  Novelli  v.  269,  607 

Rowland,  Kibblewhite  v.  217 

Rucker,  Buchanan  v.  547,  586 

Ruding  V.  Smith  18,  62,  79,  90 

Rue  High,  Appellant  43 

Rundle  v.  Delaware  &  Raritan 

Canal  554 


Russell,  Blanchard  v.       22,  35,  38, 

244,261,278,  317,  335,  337, 

340,  346,  348,  349.  362 

V.  Field  610  a. 

Ryan  v.  Ryan  79,  113 


Salmon  v.  Woodon  610  a. 

Santa  Cruz  (The  Ship)  423  h. 

Sarmiento,  Green  v.   335,  342,  348, 

608 

Saul  V.  His  Creditors       13,  14,  28, 

33,  38,  51,  75,  78,  89,  96,  153, 

157,   170,   173,   177,  178,   190, 

277,  326 

Saunders  v.  Drake       113,  118,  119 

313,  479  ^.. 

V.  Williams  416 

Ogden  V.      266,  323,  335, 

340,  341,  343,  346,  398, 

416,  421,  570 

Savage,  Prentiss  v.  270,  281, 

314,  335,  345,  351 

Savatier,  De  Couche  v.  88,  89, 

145  a,  152,  178,  276,481,577, 

581,  582  a. 

Sawyer  v.  Shuter  171  a. 

School  Directors  v.  James  46 

Scolfield  V.  Day       291,  305,  311  a. 

Scotland,  Royal  Bank  o(  v. 

Cuthbert  408,  423 

Scott  V.  Alnutt  364,  367,  398 

Balfour  v.  465 

V.  Bevan  308,  313 

Scoville  V.  Canfield  621 

Scrimshire  v.  Scrimshire        44.  46, 

80,80  a,  113,  121,  122,  122  a, 

514  i,  596 

Seabright  v.  Calbrailh  332 

Sears,  Fen  wick  v.  513,  558 

Selkrig  v.  Davis  159,  186,  364, 

395,398,400,408,  423,  428, 

543 

Seton,  Parish  v.  409 

Shanklin  v.  Cooper  314,  347 

Sharp,  Foden  v.  296,  320 

Shattuck,  Moley  v.  593 

Shaw,  Carr  n.  353 

Shedden  v.  Patrick  87  a 

Shelby  v.  Grey  582 

Sherrill  v.  Hopkins  340,  346 

Shipman  v.  Thompson  516 

Shuhzi).  Pulver  481,  515 

Shumway  V.  Slillman  586,608,009 

Sill  V.  Worswick        362,  380,  390, 

395, 398, 404, 406, 408,  428, 

481 


XXXVl 


INDEX   TO    CASES    CITED. 


Silver  v.  Stein 
Simmons,  ex  parte 
Sinclair  v.  Fraser 
V.  Sinclair 
Sinlder,  Foster  v. 
Slack  V.  Walcott 
Slacum  V.  Pomeroy 


513 

96 

603,  605 

596 

396 

516 

307,  314, 

317,  346 

Slyhoof  V.  Flitcraft  610  a. 

Smith,  Atkins  v.  515 

V.  Buchanan    342,  348,  408, 

564 

Glenn  v.  513 

V.  Healy  571,  572 

Lawrence  v.  228 

V.  Mclver  610  a. 

V.  Mead  242,  279,  296 

V.  Nicolls  522 

V.  Ruding        18,  62,  79,  90, 

113,  118,  119 

V.  Shaw  311a. 

V.  Smith  335,  342,  348 

V.  SpinoUa  558,  571 

V.  Stotesbury  253 

V.  Webb  513 

Smith's  Adm'r  v.  Union  Bank 

of  Georgetown  513,  524 

Snaith  v.  Mingay  289 

Solomons  v.  Ross  398,  407 

Somerset's  Case  27,  96,  259 

Somerville  v.  Somerville       45,  46, 
47,  465,  469 
Southey  v.  Sherwood  558 

Southward,  Wyman  v.  571 

Span,  Dewar  v.  287  a,  293,  305 
Spencer,  Bollard  v.  516 

Spratt  IK  Harris  5\ib 

Springfield  Bank  v.  Merrick  246 
Sproule  V.  Legge  272  a,  313,  317 
Stanley  v.  Barnes  4G,  4G5,  467 

Stapleton  v.  Conway  288,  293,  305, 

313 

Starbiick  v.  Murray  608 

State  (The)  v.  Knight  621 

V.  Patterson  113 

u.  Twilty  641a. 

Stearns  v.  Burnhain  358,  513 

Steele  V.  Braddell  123  a,  124 

Stein's  Case         186,  304,  408,  428 

Sterry,  Harrison  v.    263,  323,  416, 

422,  524 

Stevens  v.  Gaylord  513,  514  b,  520 

Stevenson,  Ramsay  v.         386,  392 

Stewart  v.  Ellice  291 

Thompson  v.  643 

St.  Louis  (The)  96 

Stodder,  Whiston  v.    242,  244,  285 

StoDe,  Rawlinson  v.  359 


Strathmore  v.  Bowes  93  s. 

Strathmore  Peerage  Case  87  a. 

Stuart,  Cavan  v.  547,  586 

Sturgis  V.  Crowninshield     335,  580 
Suarez  v.  Mayor  &c.  of  New 

York  481 

Sullivant,  McCormick  v.    428,  435, 

474,  483  a, 

Sumner,  Lanfear  v.     386,  389,  392 

Sutton  V.  Warren    113,  114,  114  a, 

116 
Suydam  v.  Broadnax  572 

Swan,  Picquet  v.  539,  547 

Swearingen's  Ex'rs  v.  Pendle- 
ton's Ex'ors  514  b. 
Symonds  v.  Union  Ins.  Co.         571 


Talbot  V.  Leeman  640 

Talleyrand  v.  Boulanger  569 

Talmadge  v.  Chapel  522 

Tanner  v.  King  43 

Tappan  v.  Poor  337,  339 

Tarleton,  Evans  V.  609 

V.  Tarleton  593,  598,  606 

Taylor  v.  Bryden  609 

Elmendorf  v.  Til 

V.  Phelps  549,  598 

V.  Royal  610  a. 

Teesdale,  Latour  v.  118,  120 

Temple,  Hodgson  v.  254 

Teuton  v.  Garlick  547 

Terasson,  Van  Cleff  v.  333 

Territt  v.  Woodruff  637 

Tewsch,  Utterton  i-.  216,  217 

Thomond,  O'Callagan  v.      355,  566 

Thompson  v.  Advocate  380 

V.  Ketcham         82,  241, 

281,  291,  332 

V.  Powles  259,  291,  305 

Shipman  v,  516 

V.  Stewart  643 

Vidal  V.    262,  301,  302, 

318 

V.  Wilson  358,513,517 

Thorn  v.  Watkins      362,  481,  484, 

513,  515 

Thorndike  v.  City  of  Boston     45  a. 

Thornton,  Curling  v.  465 

Thuret  v.  Jenkins  392,  393 

Thurston,  Dangerfield  v.  513 

Ticknor  v.  Roberts  260  a. 

Tilley,  Chaplin  v.  513 

Titus  V.  Hobart  339,  571,  572 

Toler,  Armstrong  v.  245,  246,  247, 

249,  250 

Tondear,  Pertreis  v.  119 


INDEX   TO    CASES    CITED. 


XXXV 11 


Touro  V.  Cassin  213 

Tourlon  v.  Fowler  513 

Tousey,  Campbell  r.  513,  514,  514  6 
Tovey  v.  Lindsay  88,  106,  117, 
218,  225 
Townes,  Olivier  v.  386,  388,  410, 
416,  481,  524 
Townsend,  Atwater  v.       335,  571, 

572 
V.  Jennison  582  a 

Trasher  v.  Everhart  242,  244,  558, 
506,  631,  637 
Trecothick  v.  Austin  359,513,  515 
Tremere,  Wood  v.  586 

Trimbey  v.  Vio-nier    242,  267,  272, 
314,   316  flf,  353  a,  356,   359, 
558,  566 
Triplett,  Bank  of  Washing- 
ton V.  361 
Trotter  v.  Trotter                      479  a 
Tupper,  Nashr.                          558 
Turner,  Inhabitants  of  Hano- 
ver V.                                    228 
Turst,  Feaubert  v.    143,  145  a,  276 
Tyler  v.  Bell                     513,514  6 
V.  Trabue                   281,  637 


U. 


U.  Insur.  Co.,  Vanderheuvel  v.  593 

Underwood,  Englis  v.  402 

United  States,  Brown  v.  334 

V.  Crosby    428,  435, 

474,  483  a 

Cox  &  Dickw.   281, 

290 

V.  Davis  628 

Duncan  v.  290 

V.  Johns  643 

Union  Bank  of  Georgetown, 

Smith  Adm'r  v.  513,  524 

Union  Insur.  Co.,  Symonds  v.    571 
Utterton  v.  Tewsch  216,  217 


Van  Cleff  v.  Terasson  333 

Vanderdonckt  v.  Thellusson  642 
Vanderheuvel  v.  U.  Insur.  Co.  593 
Van  Raugh  v.  Van  Arsdaln       341, 

348 
Van  Rensselaer,  Ludlow  v.       257, 

200,  281 

Van  Reimsdyk  v.  Kane     243,  263, 

281,  335,  558,  577 

Van  Schaick  v.  Edwards  243, 287  a, 

293,  304 

d 


Vardill,  Doe  dem.  Birthwhistle  v. 
81,  87,  93  a,  336,  386,  428,434, 

481,  483 
Vassall,  Foster  v.  544 

Vavasseur,  Bayon  v.  203 

Venus  (The)  48 

Very  v.  McHenry       335,  341,  348, 

351,410 
Vermilya  w.  Beatty  513 

Vianna,  De  la  Vega  v.       272,  550, 
571,  577,  582  a 
Vickery,  Kraft  v.  499,  504  a 

Vidal  V.  Thompson    262,  301,  302, 

318 
Virginie,  La  47 

W. 

Waddington,  Griswold  v.  259 

Wade,  Beckford  v.  582 

Wadham  v.  Marlovv  404 

Wadleigh  u.  Veazie  610  a 

Walcott  V.  Walker  258 

Walcot,  Slack  v.  516 

Walk  V.  Bank  of  Circleville       45  a 

Walker,  Byrne  v.  565 

V.  Perkins  258 

V.  Witter  603,  604 

Wallis,  Birmington  v.  258 

V.  Brightwell  479  5 

Lewis  V.  395 

V.  Patterson  415,  416 

Walsh  V.  Durkin  610  a 

V.  Nourse  335,  339 

Ward  V.  Amedon  545 

V.  Day  79  a 

Warde,  Dudley  v.  582 

Warder  v.  Arell  332 

Ward's  Ex'ors,  Robinson  v,       549 

Warren  v.  Lynch  567 

Warrender  v.  Warrender       46,  88, 

106,  114,  124,  205,  218,  226  a, 

230  6,2596,  268  rt,  322  6,  351c, 

351  d,  364,  620,  625 

Washburn  (In  the  matter  of)     627, 

628 
Waters,  Carrol  v.  322 

Watson  V.  Bourne  335,  340 

Watts  1).  Kinney  554 

Massie  v.  545 

V.  Waddle  543 

Wayne  v.  Greene  44 

Waynell  v.  Reed  252,  255 

Webb  V.  Plummer  270 

Welsh  V.  Sykes  608 

West  Cambridge  r.  Lexington 

89,  113,  123  6 


XXXVlll 


INDEX   TO    CASES    CITED. 


West  Lyndic  v.  McConnell      610  a 
Weston,  Babcock  v.  348 

Wetherell  v.  Jones  254 

Wheaton,  Baker  v.  335,  340 

Whiston  V.  Stodder  242,  244,  285, 

322  J 

White  V.  Canfield  339 

V.  Hall  545 

Leffin swell  v.  270 

Whitney  v.  Walsh  592 

Whiitemore  v.  Adams  571 

Wigglesworth  v.  Dallison  270 

Wightman,  Pottinger  v.        46,  506 

V.  Wightman     114,  116 

Wilcox  V.  Hunt  242,  272,  558, 

631,  635  c? 

Wilcocks,  Lee  v.  308 

Wilkins,  Brush  v.  642 

Willes,  Madrazo  v.  96  a,  259 

Williams  v.  Armroyd  592 

Blake  v.     329,  380,  396, 

399,  409,  410,  414, 

415,  417,  420,  428 

Hall  V.         586,  608,  609 

Saunders  v.  416 

V.  Wade  316  J 

Willing,  Consequa  v.  242,  291,  307, 

571,  637 

Willis  V.  Baldwin  258 

Wills  V.  Cowper         365,  428,  435, 

474, 483  a 

Wilson  In  re  395,  398,  404 

Meeker  v.  386 

V.  Niles  609 


Wilson,  Thompson  u.  358,513,517 
Winchelsea  (Earl  of)  v.  Ga- 

retty  266  a,  366 

Winter,  Ory  v.     317,  332,  340,  346 

Wiiithrop  V.  Carleton  296 

Withy,  Jaques  v.  246 

Wolfl'  V.  Oxholm        334,  348,  350, 

565,  566,  620 

Wood  V.  Patridge  396 

V.  Tremere  586 

V.  Waikinson  608,  609 

Woodbridge  v.  Wright        571,  572 

Woodstock  V.  Hartland  47 

Worsvvick,  Sill  v.       362,  380,  390, 

395,  398,  404,  406,  408,  428,  481 

Wrigby  e:^  parte  47 

Wright,  Hoxie  v.  608,  609 

V.  Paton  339 

Wyman  v.  Southward  571 

Wynne  v.  Jackson      260,  262,  318 

Y. 

Yates  V.  Thompson  260,  479  g, 
481,  491,  634  a,  635^,635  c 

Yeaton  v.  Fry  643 

Young  V.  Crossgrove  577 

V.  Templeton  182,  642 

Yrissarii  v.  Clement  291 

Z. 


Zacharie,  Bayle  v. 


287,  341 


COMMENTARIES 

ON    THE 

CONFLICT 
BETWEEN  FOUEIGN  AND  DOMESTIC  LAWS. 


CHAPTER  I. 

INTRODUCTORY   REMARKS. 


§  1.  The  Earth  has  long  since  been  divided  into  dis- 
tinct Nations,  inhabiting  different  regions,  speaking 
different  languages,  engaged  in  different  pursuits,  and 
attached  to  different  forms  of  government.^  It  is 
natural,  that,  under  such  circumstances,  there  should 
be  many  variances  in  their  institutions,  customs,  laws, 
and  polity ;  and  that  these  variances  should  result 
sometimes  from  accident,  and  sometimes  from  design, 
sometimes  from  superior  skill  and  knowledge  of  local 
interests,  and  sometimes  from  a  choice  founded  in  igno- 
rance, and  supported  by  the  prejudices  of  imperfect 
civilization.  Climate,  and  geographical  position,  and 
the  physical  adaptations  springing  from  them,  must  at 
all  times  have  had  a  powerful  influence  in  the  organiza- 


1  Upon  the  subject  of  this  chapter  the  learned  reader  is  referred  to 
Surge's  Commentaries  upon  Colonial  and  Foreign  Law,  Vol.  I.  Pt.  1, 
eh.  1,  p.  1  to  32. 

CONFIi.  1 


2  CONFLICT   OF  LAWS.  [CH.  I. 

tion  of  each  society,  and  have  given  a  peculiar  com- 
plexion and  character  to  many  of  its  arrangements. 
The  hold,  intrepid,  and  hardy  natives  of  the  North  of 
Europe,  -whether  civilized  or  barbarous,  would  scarcely 
desire,  or  tolerate,  the  indolent  inactivity  and  luxurious 
indulgences  of  the  Asiatics.  Nations,  inhabiting  the 
borders  of  the  ocean,  and  accustomed  to  maritime  inter- 
course with  other  nations,  would  naturally  require  insti- 
tutions and  laws,  adapted  to  their  pursuits  and  enter- 
prises, which  would  be  wholly  unfit  for  those,  who 
should  be  placed  in  the  interior  of  a  continent,  and 
should  maintain  very  different  relations  with  their 
neighbors,  both  in  peace  and  war.  Accordingly  we  find, 
that,  from  the  earliest  records  of  authentic  history, 
there  has  been  (as  far  at  least  as  we  can  trace  them) 
little  uniformity  in  the  laws,  usages,  policy,  and  insti- 
tutions, either  of  contiguous  or  of  distant  nations. 
The  Egyptians,  the  Modes,  the  Persians,  the  Greeks, 
and  the  Romans,  differed  not  more  in  theu'  characters 
and  employments  from  each  other,  than  in  their  insti- 
tutions and  laws.  They  had  little  desire  to  learn,  or  to 
borrow,  from  each  other  j  and  indifference,  if  not  con- 
tempt, was  the  habitual  state  of  almost  every  ancient 
nation  in  regard  to  the  internal  polity  of  all  others. 

§  2.  Yet  even  under  such  circumstances,  from  their 
mutual  intercourse  with  each  other,  questions  must 
sometimes  have  arisen,  as  to  the  operation  of  the  laws 
of  one  nation  upon  the  rights  and  remedies  of  parties 
in  the  domestic  tribunals,  especially  when  they  were  in 
any  measure  dependent  upon,  or  connected  with,  foreign 
transactions.  How  these  questions  were  disposed  of, 
we  do  not  know.  But  it  is  most  probable,  that  they 
were  left  to  be  decided  by  the  analogies  of  the  muni- 
cipal code,  or  were  abandoned  to  their  fate,  as  belong- 


CH.  I.]  INTRODUCTORY   REMARKS.  3 

ing  to  that  large  class  of  imperfect  rights,  which  rests 
wholly  on  personal  confidence,  and  is  left  without 
any  appeal  to  remedial  justice.  It  is  certain,  that  the 
nations  of  antiquity  did  not  recognize  the  existence  of 
any  general,  or  universal  rights  and  obligations,  such 
as  among  the  moderns  constitute,  what  is  now  empha- 
tically called,  the  Law  of  Nations.  Even  among  the 
Romans,  whose  jurisprudence  has  come  down  to  us  in  a 
far  more  perfect  an^  comprehensive  shape,  than  that  of 
any  other  nation,  there  cannot  be  traced  out  any  dis- 
tinct system  of  principles,  applicable  to  international 
cases  of  mixed  rights.  This  has  been  in  some  measure 
accounted  for  by  Huberus  ^  upon  the  supposition,  that 
at  the  time  to  which  the  Roman  jurisprudence  relates, 
the  Roman  dominion  extended  over  so  great  a  portion 
of  the  habitable  world,  that  frequent  cases  of  contra- 
riety or  conflict  of  laws  could  scarcely  occur.^  But 
this  is  a  very  inadequate  account  of  the  matter ;  since 
the  antecedent  jurisprudence  of  Rome  must  have  em- 
braced many  such  cases  at  earlier  periods ;  and  if  there 
had  been  any  rules,  even  traditionally  known,  to  govern 
them,  they  could  scarcely  have  failed  of  being  incorpo- 
rated into  the  Civil  Codes  of  Justinian.  In  many  of 
the  nations,  over  which  the  Romans  extended  their 
dominion,  the  inhabitants  were  left  in  possession  of 
their  local  institutions,  usages,  and  laws,  to  a  large 
extent ;  and  commercial  as  well  as  political  intercourse 
must  have  brought  many  diversities  of  laws  and  usages 


1  2  Hub.  lib.  1,  tit.  3,  p.  538. 

3  The  language  of  Huberus  is,  "Injure  Romano  non  est  mirum  nihil 
hac  de  re  extare,  cum  populi  Romani  per  omnes  orbis  partes  diffusum, 
et  aequabili  jure  gubernatum  imperium,  conflictui  diversarura  legum  non 
ffique  potuerit  esse  subjectum."  —  Hub.  lib.  2,  tit.  3,  sect.  1. 


4  CONFLICT    OF   LAWS.  [CH.  I. 

in  judgment  before  the  tribunals  of  justice.^  We  have 
the  most  abundant  evidence  on  this  head,  in  relation  to 
the  Jews,  after  they  had  submitted  to  the  Roman  yoke, 
who  were  still  permitted  to  follow  their  own  laws  in  the 
times  of  our  Saviour,  and  down  to  the  destruction  of 
Jerusalem.^ 

^  2  a.  When  the  Northern  nations  by  their  irrup- 
tions finally  succeeded  in  establishing  themselves  in 
the  Roman  empire,  and  the  dependent  nations  subjected 
to  its  sway,  they  seem  to  have  adopted,  either  by  de- 
sign, or  from  accident,  or  necessity,  the  policy  of  allow- 
ing the  different  races  to  live  together,  and  to  be  go- 
verned by  and  to  preserve  their  own  separate  manners, 
laws,  and  institutions  in  their  mutual  intercourse. 
While  the  conquerors,  the  Goths,  Burgundians,  Franks, 
and  Lombards,  maintained  their  own  laws  and  usages 
and  customs  over  their  own  race,  they  silently  or 
expressly  allowed  each  of  the  races,  over  whom  they 
had  obtained  an  absolute  sovereignty,  to  regulate  their 
own  private  rights  and  aifairs  according  to  their  own 
municipal  jurisprudence.  It  has  accordingly  been  re- 
marked, by  a  most  learned  and  eminent  jurist,  that 
from  this  state  of  society  arose  that  condition  of  civil 
rights  denominated  personal  rights,  or  personal  laws, 
in  opposition  to  territorial  laws.^ 


1  See  1  Hertii,  Opera,  §  4,  de  Collis.  leg.  p.  119,  ^  2  ;  Id.  p.  169,  edit. 
1716. 

2  There  are  traces  to  be  found  in  the  Digest  of  the  existence  and  opera- 
tion of  the  Lex  Loci.  See  Dig.  lib.  50,  tit.  1,  1.  21,  §  7  ;  Id.  lib.  50,  tit. 
6,  I.  5,  ^  1 ;  Id.  tit.  4, 1.  18,  §  27  ;  Id.  tit.  3, 1.  1  ;  Livermore,  Dissert, 
p.  1,  n.  a. 

3  Savigny's  History  of  the  Roman  Law  in  the  Middle  Ages.  The 
whole  passage  is  exceedingly  interesting  and  curious  ;  and  therefore  I 
quote  it  at  large  from  Mr.  Calhcart's  Translation,  Vol.  I.  ch.  3,  p,  99  to 
104.  —  W^hen  the  Goths,  Burgundians,  Franks,  and  Lombards,  founded 


CH.  I.] 


INTRODUCTORY   REMARKS. 


§  2  J.  Still,  however,  this  was   but  a  mere  arrange- 
ment in  the  domestic  polity  of  each  particular  nation  ; 


kingdoms  in  the  countries,  formerly  subject  to  the  power  of  Rome,  there 
were  two  different  modes  of  treating  the  conquered  race.  They  might  be 
extirpated,  by  destroying  or  enslaving  the  freemen  ;  or,  the  conquering 
nations,  for  the  sake  of  increasing  their  own  numbers,  might  transform  the 
Romans  into  Germans,  by  forcing  on  them  their  manners,  constitution,  and 
laws.  Neither  mode,  however,  was  followed  ;  for,  although  many  Ro- 
mans were  slain,  expatriated,  or  enslaved,  this  was  only  the  lot  of  indi- 
viduals, and  not  the  systematic  treatment  of  the  nation.  Both  races,  on 
the 'contrary,  lived  together,  and  preserved  their  separate  manners  and 
laws.  From  this  state  of  society  arose  that  condition  of  civil  rights,  de- 
nominated Personal  rights,  or  Personal  laws,  in  opposition  to  territorial 
laws.  The  moderns  always  assume,  that  the  law,  to  which  the  individual 
owes  obedience,  is  that  of  the  country,  where  he  lives  ;  and  that  the 
property  and  contracts  of  every  resident  are  regulated  by  the  law  of  his 
domicil.  In  this  theory,  the  distinction  between  native  and  foreigner  is 
overlooked,  and  national  descent  is  entirely  disregarded.  Not  so,  how- 
ever, in  the  middle  ages  ;  where,  in  the  same  country,  and  often  indeed 
in  the  same  city,  the  Lombard  lived  under  the  Lombardic,  and  the  Ro- 
man under  the  Roman  law.  The  same  distinction  of  laws  was  also 
applicable  to  the  different  races  of  Germans.  The  Frank,  Burgundian, 
and  Goth,  resided  in  the  same  place,  each  under  his  own  law  :  as  is 
forcibly  stated  by  the  Bishop  Agobardus,  in  an  Epistle  to  Louis  le  Debon 
naire.  '  It  often  happens,'  says  he,  '  that  five  men,  each  under  a  different 
law,  may  be  found  walking  or  sitting  together.' 

"In  the  East-Gothic  kingdom  alone,  this  custom  was  not  originally  fol- 
lowed. There,  an  artificial  and  systematic  plan  was  adopted,  which 
belongs  to  the  particular  history  of  that  nation,  and  cannot  be  brought 
within  the  general  inquiry.  All  the  other  States  followed  the  system  of 
Personal  laws;  and,  this  universal  practice  could  not  have  arisen  from 
accidental  reasons,  but  from  common  views,'principlcs,  and  wants.  These 
may  be  appropriately  illustrated  at  present. 

"According  to  the  general  opinion,  the  system  of  personal  laws  pre- 
vailed among  all  the  German  nations,  from  the  earliest  times  ;  and  it  is 
customary  to  explain  this  circumstance  by  the  love  of  freedom,  so  peculiar 
to  these  races.  In  the  first  place,  however,  it  is  difficult  to  perceive,  how 
such  an  institution  could  arise  merely  from  regard  to  liberty.  Such  an 
attachment  might,  indeed,  create  a  wish  among  nations,  or  individuals  to 
preserve  their  own  laws,  in  a  foreign  country,  or  under  a  foreign  yoke  ; 
but  the  question  is,  how  were  the  predominant  people  induced  to  grant 
them  this  privilege"?  The  benevolent  and  hospitable  disposition  of  the 
victorious  may  have  been  partly  the  cause  ;  but,  their  mere  love  of  freedom 
1* 


6  CONFLICT   OF   LAWS.  [CH.  L 

and   even   then,  it  must  often  have  involved  serious 
embarrassments,  whenever  questions  arose  in  regard  to 


affords  no  satisfactory  explanation.  This  humane  treatment  of  foreigners 
was  not  deeply  seated  in  the  character  of  the  old  Germans.  It  is  probable, 
that  among  them  every  foreigner  was,  at  first,  a  Wildfang,  and  belonged 
to  the  class  of  the  Biesterfreien  ;  —  denied  the  advantages,  arising  from 
service  in  the  national  army,  or  from  the  obligations  of  fealty,  and  living 
as  an  alien,  unprotected  by  any  power,  except  the  weak  hand  of  the 
general  government;  who,  while  they  excluded  him  from  the  rights  of 
marriage,  inherited  his  property,  and  exacted  his  composition,  if  slain. 
Further,  the  want  of  such  an  institution,  as  the  Personal  Laws,  could 
never  have  been  felt,  in  a  country  without  trade,  and  where  few  foreigners 
resided.  In  these  circumstances,  its  introduction  was  impossible.  If  only 
a  single  Goth  lived  in  the  Burgundian  Empire,  none  of  his  countrymen 
could  be  found  to  administer  Gothic  Law,  and  the  Burgundians  thenaselves 
were  entirely  ignorant  of  it. 

"The  truth  is,  that  the  want  of  such  an  institution,  and  the  possibility 
of  introducing  it,  could  occur  only,  after  the  nations  were  blended  together 
in  considerable  masses.  The  internal  condition  of  each  kingdom  would 
then  produce  what  could  never  have  been  brought  about  by  mere  benevo- 
lence toward  individual  foreigners.  According  to  this  account  of  the 
origin  of  the  system  of  Personal  laws,  it  prevailed  in  all  the  German 
States,  settled  in  countries  formerly  subject  to  Rome.  At  first,  the  vali- 
dity of  two  Laws  only  was  admitted  :  e.  g.  the  law  of  the  victorious  race, 
and  of  the  vanquished  Romans.  Individuals  belonging  to  other  German 
nations,  did  not  at  first  enjoy  the  right  of  living  under  their  own  laws  ; 
but  when  our  supposed  kingdom  had  extended  its  conquests,  and  spread 
but  its  dominion  over  other  German  tribes,  then  the  laws  of  the  con- 
quered German  races  were  acknowledged,  in  the  same  manner  as  the 
Roman  formerly  had  been.  Thus,  also,  every  foreign  law,  prevailing  in 
the  empire  of  the  conqueror,  was  admitted  and  considered  as  valid  among 
all  the  vanquished.  This  practice  ought  to  have  produced  the  following 
results.  At  first,  in  the  northern  parts  of  France,  the  Frank  and  Roman 
laws  must  have  been  exclusively  received  ;  and,  under  the  Carlovingian 
dynasty,  it  would  become  necessary  to  admit  likevi'ise  the  laws  of  the 
West  Goths,  Burgundians,  Alemans,  Bavarians,  and  Saxons  ;  because 
these,  as  nations  belonged  to  the  empire.  Italy,  however,  did  not  form 
a  Province  under  the  Franks,  and  there  could  not  consequently  be  the 
same  reason  for  admitting  the  validity  of  Lombardic  Law  within  the 
Frank  empire.  In  Italy,  also,  under  the  Lombardic  Kings,  only  Lom- 
bardic and  Roman  law  could  have  prevailed  to  the  exclusion  of  every 
other;  but,  after  its  conquest  by  the  Franks,  all  the  multifarious  foreign 
laws,  existing  in  the  territory  of  the  conquerors,  must  have  been  intro- 


CH.  I.]  INTRODUCTORY   REMARKS.  7 

conflicting  rights,  and  claims,  and  remedies,  growing 
out  of  dealings,  and  acts,  and  contracts  between  indi- 
viduals belonging  to  different  races.  But  when  the 
question  assumed  a  more  comprehensive  character,  and 
the  point  to  be  decided  was,  what  rule  should  prevail, 
where  there  was  a  conflict  of  laws  between  different 
sovereignties,  wholly  independent  of  each  other ;  and 
there  were  rights  to  be  established  of  a  private  nature 
between  some,  of  the  subjects  of  each  sovereignty ; 
there  was  no  recognized  principle  or  practice,  which 
was  promulgated  by  all,  or  submitted  to  by  all.  Such 
rights  were  probably  left  without  any  remedy,  and 
became  either  the  subject  of  private  adjustment,  or 
were  silently  disregarded. 

§  3.  The  truth  is,  that  the  Law  of  Nations,  strictly  so 
called,  was  in  a  great  measure  unknown  to  antiquity, 
and  is  the  slow  growth  of  modern  times,  under  the 
combined  influence  of  Christianity  and  Commerce.^  It 
is  well  known,  that  when  the  Roman  Empire  was  de- 
stroyed, the  Christian  world  was  divided  into  many 
independent  sovereignties,  acknowledging  no  common 
head,  and  connected  by  no  uniform  civil  polity.  The 
invasions  of  the  Barbarians  of  the  North,  the  establish- 
ment of  the  feudal  system  in  the  middle  ages,  and  the 
military  spirit  and  enterprise  cherished  by  the  Crusades, 
struck  down  all  regular  commerce,  and  surrendered  all 


duced.  Now,  these  anticipated  results  are  supported  by  history  ;  and 
this  accordance  is  a  strong  practical  confirmation  of  that  account  of  the 
origin  of  Personal  Laws,  already  established  by  general  reasoning."  — 
The  same  passage  will  be  found  in  Mr.  Guenoux's  French  translation  of 
the  same  work,  Vol.  1,  ch.  3,  p.  84  to  88,  edit.  1830  ;  Id.  ch.  3,  ^  30, 
edit.  1839. 

1  See  1  Ward,  Law  of  Nations,  ch.  6.  p.  171  to  200  ;  Id.  ch.  3,  p.  120 
to  130. 


8  CONFLICT    OF   LAWS.  [CH.    I. 

private  rights  and  contracts  to  mere  despotic  power. 
It  was  not  until  the  revival  of  Commerce  on  the  shores 
of  the  Mediterranean,  and  the  revival  of  Letters  and  the 
study  of  the  Civil  Law  by  the  discovery  of  the  Pandects, 
had  given  an  increased  enterprise  to  maritime  naviga- 
tion, and  a  consequent  importance  to  maritime  contracts, 
that  any  thing  like  a  system  of  international  justice 
began  to  be  developed.  It  first  assumed  the  modest 
form  of  commercial  usages;  it  was  ne:sji  promulgated 
under  the  more  imposing  authority  of  royal  ordinances ; 
and  it  finally  became  by  silent  adoption  a  generally 
connected  system,  founded  in  the  natural  convenience, 
and  asserted  by  the  general  comity  of  the  commercial 
nations  of  Europe.  The  system,  thus  introduced  for  the 
purposes  of  commerce,  has  gradually  extended  itself  to 
other  objects,  as  the  intercourse  of  nations  has  become 
more  free  and  frequent.  New  rules,  resting  on  the 
basis  of  general  convenience,  and  an  enlarged  sense  of 
national  duty,  have,  from  time  to  time,  been  promul- 
gated by  jurists,  and  supported  by  courts  of  justice,  by 
a  course  of  juridical  reasoning,  which  has  commanded 
almost  universal  confidence,  respect,  and  obedience,  with- 
out the  aid,  either  of  municipal  statutes,  or  of  royal 
ordinances,  or  of  international  treaties. 

§  4.  Indeed,  in  the  present  times,  without  some  gene- 
ral rules  of  right  and  obligation,  recognized  by  civilized 
nations  to  govern  their  intercourse  with  each  other,  the 
most  serious  mischiefs  and  most  injurious  conflicts  would 
arise.  Commerce  is  now  so  absolutely  universal  among 
all  countries ;  the  inhabitants  of  all  have  such  a  free  in- 
tercourse with  each  other;  contracts,  sales,  marriages, 
nuptial  settlements,  wills,  and  successions,  are  so  com- 
mon among  persons,  whose  domicils  are  in  different 
countries,  having  different  and  even  opposite  laws  on 


CH.   I.]  INTRODUCTORY   REMARKS.  9 

the  same  subjects;  that,  without  some  common  prin- 
ciples adopted  by  all  nations  in  this  regard,  there  would 
be  an  utter  confusion  of  all  rights  and  remedies ;  and 
intolerable  grievances  would  grow  up  to  weaken  all  the 
domestic  relations,  as  well  as  to  destroy  the  sanctity  of 
contracts  and  the  security  of  property.^ 

§  5.  A  few  simple  cases  will  sufficiently  illustrate 
the  importance  of  some  international  principles  in  mat- 
ters of  mere  private  right  and  duty.  Suppose  a  contract, 
valid  by  the  laws  of  the  country,  where  it  is  made,  is 
sought  to  be  enforced  in  another  country,  where  such  a 
contract  is  positively  prohibited  by  its  laws;  or,  vice 
versa,  suppose  a  contract  invalid  by  the  laws  of  the  coun- 
try, where  it  is  made,  but  valid  by  that  of  the  country, 
where  it  is  sought  to  be  enforced ;  it  is  plain,  that  un- 
less some  uniform  rules  are  adopted  to  govern  such 
cases,  (which  are  not  uncommon,)  the  grossest  ine- 
qualities will  arise  in  the  administration  of  justice 
between  the  subjects  of  the  different  countries  in  regard 
to  such  contracts.  Again ;  by  the  laws  of  some  coun- 
tries marriage  cannot  be  contracted  until  the  parties 
arrive  at  twenty-one  years  of  age ;  in  other  countries 
not  until  they  arrive  at  the  age  of  twenty-five  years. 
Suppose  a  marriage  to  be  contracted  between  two  per- 
sons in  the  same  country,  both  of  whom  are  over  twenty- 
one  years  but  less  than  twenty-five,  and  one  of  them  is 
a  subject  of  the  latter  country.     Is  such  a  marriage 


1  BouUenois,  inr  his  Preface,  (1  vol.  p.  18,)  says,  "  II  regnera  done 
toujours  entre  les  nations  une  contrariety  perpetuelle  de  loix;  peut-dtre 
regnera-t-elle  perpetuellement  entre  nous  sur  bien  des  objects.  Deli  la 
necessite  de  s'instruire  des  regies  et"  des  principes  qui  peuvent  nous 
conduire  dans  la  decision  des  questions,  que  cette  vari6ie  peut  faire 
naitre." 


10  CONFLICT    OF   LAWS.  [CH.    L 

valid,  or  not  ?  If  valid  in  the  country,  where  it  is  cele- 
brated, is  it  valid  also  in  the  other  country  ?  Or,  the 
question  may  be  propounded  in  a  still  more  general 
form ;  is  a  marriage,  valid  between  the  parties  in  the 
place  where  it  is  solemnized,  equally  valid  in  all  other 
countries  ?  Or,  is  it  obligatory  only  as  a  local  regu- 
lation, and  to  be  treated  everywhere  else  as  a  mere 
nullity  ? 

§  6.  Questions  of  this  sort  must  be  of  frequent  occur- 
rence, not  only  in  different  countries,  wholly  independent 
of  each  other;  but  also  in  provinces  of  the  same  empire, 
which  are  governed  by  different  laws,  as  was  the  case 
in  France  before  the  Revolution ;  and  also  in  countries 
acknowledging  a  common  sovereign,  but  yet  organized 
as  distinct  communities,  as  is  still  the  case  in  regard  to 
the  communities  composing  the  British  Empire,  the 
Germanic  Confederacy,  the  States  of  Holland,  and  the 
Dominions  of  Austria  and  Russia.*  Innumerable  suits 
must  be  litigated  in  the  judicial  forums  of  these  coun- 
tries, and  provinces,  and  'communities,  in  which  the 
decision  must  depend  upon  the  point,  whether  the  na- 
ture of  a  contract  should  be  determined  by  the  law  of 
the  place,  where  it  is  litigated ;  or  by  the  law  of 
the  domicil  of  one  or  of  both  of  the  parties ;  or  by  the 
law  of  the  place,  where  the  contract  is  made ;  whether 
the  capacity  to  make  a  testament  should  be  regulated 
by  the  law  of  the  testator's  domicil,  or  that  of  the  loca- 
tion {situs)  of  his  property ;  whether  the  form  of  his 
testament  should  be  prescribed  by  the  law  of  the  place 
of  his  domicil,  or  by  that  of  the  location  of  his  property, 
or  by  that  of  the  place,  where  the  testament  is  made ; 


1  See  1  Froland,  M6moires  sur  les  Statuts,  P.  1,  ch.  1,  §  5  to  10. 


CH.    I.]  INTRODUCTORY   REMARKS.  11 

and  in  like  manner,  whether  the  law  of  the  domicil,  or 
what  other  law  should  govern  in  cases  of  succession  to 
intestate  estates.-' 

§  7.  It  is  plain,  that  the  laws  of  one  country  can 
have  no  intrinsic  ioYce,  jyroprio  vigorc,  except  within  the 
territorial  limits  and  jurisdiction  of  that  country.  They 
can  bind  only  its  own  subjects,  and  others,  who  are 
within  its  jurisdictional  limits ;  and  the  latter  only, 
while  they  remain  therein.  No  other  nation,  or  its  sub- 
jects, are  bound  to  yield  the  slightest  obedience  to  those 
laws.  Whatever  extra-territorial  force  they  are  to  have, 
is  the  result,  not  of  any  original  power  to  extend  them 
abroad,  but  of  that  respect,  which  from  motives  of  pub- 
lic policy  other  nations  are  disposed  to  yield  to  them, 
giving  them  effect,  as  the  phrase  is,  siib  miituce  vicissiki- 
dinis  oUentii,  with  a  wise  and  liberal  regard  to  common 
convenience  and  mutual  benefits  and  necessities.  Boul- 
lenois  has  laid  down  the  same  exposition  as  a  part  of  his 
fundamental  maxims.  "  Of  strict  right/'  (says  he,)  ^^  all 
the  laws  made  by  a  sovereign  have  no  force  or  authority, 
except  within  the  limits  of  his  domains.  But  the  neces- 
sity of  the  public  and  general  welfare  has  introduced 
some  exceptions  in  regard  to  civil  commerce."  De  droit 
Hroit,  toiites  les  lois,  que  fait  im  souverain,  rHont  force  et 
aidorite  que  dans  Vetendiie  de  sa  domination;  mais  la  ne- 
cessite  du  Men  public  et  general  des  nations  a  admis  quelques 
exceptions  dans  ce  qui  regarde  le  commerce  civil? 

§  8.  This  is  the  natural  principle  flowing  from  the 
equality  and  independence  of  nations.  For  it  is  an 
essential  attribute  of  every  sovereignty,  that  it  has  no 


'  Livremore,  Dissert.  3,4;  Merlin,  Rupert.  Statut. 
2  1  BouUenois,  Prin.  G6n.  6,  p.  4. 


12  CONFLICT    OF    LAWS.  [CH.  I. 

admitted  superior,  and  that  it  gives  the  supreme  law 
within  its  own  dominions  on  all  subjects  appertaining  to 
its  sovereignty.  What  it  yields,  it  is  its  own  choice  to 
yield;  and  it  cannot  he  commanded  by  another  to 
yield  it  as  matter  of  right.  And,  accordingly,  it  is  laid 
down  by  all  publicists  and  jurists,  as  an  incontestable 
rule  of  public  law,  that  one  may  with  impunity  dis- 
regard the  law  pronounced  by  a  magistrate  beyond  his 
own  territory.  Extra  territorium  jus  dicenti  imjnine  non 
paretiir,  is  the  doctrine  of  the  Digest ;  ^  and  it  is  equally 
as  true  in  relation  to  nations,  as  the  Roman  law  held 
it  to  be  in  relation  to  magistrates.  The  other  part  of 
the  rule  is  equally  applicable ;  Idem  est,  et  si  supra  jiiris- 
dictionem  siiam  velitjiis  dicere  ;  for  he  exceeds  his  proper 
jurisdiction,  when  he  seeks  to  make  it  operate  extra- 
territorially  as  a  matter  of  power.^  Vattel  has  deduced 
a  similar  conclusion  from  the  general  independence  and 
equality  of  nations,  very  properly  holding,  that  relative 
strength  or  weakness  cannot  produce  any  difference  in 
regard  to  public  rights  and  duties;  that  whatever  is 
lawful  for  one  nation,  is  equally  lawful  for  another ;  and 
whatever  is  unjustifiable  in  one,  is  equally  so  in  another.^ 
And  he  affirms  in  the  most  positive  manner,  (what 
indeed  cannot  well  be  denied,)  that  sovereignty,  united 
with  domain,  establishes  the  exclusive  jurisdiction  of  a 
nation  within  its  own  territories,  as  to  controversies,  to 
crimes,  and  to  rights  arising  therein."* 

§  9.  The  jurisprudence,  then,  arising  from  the  con- 


1  Dig.  lib.  2,  tit.  1,  1.  20  ;  Pothier,  Pand.  lib.  2,  tit.  1,  n.  7. 

2  Dig.  lib.  2,  tit.  1,  1.  20  ;  Pothier,  Pand.  lib.  2,  tit.  1,  n.  7. 

3  Vattel,  Prelim.  ^  15  to  20  ;  Id.  B.  2,  ch.  3,  §  35,  36  ;  The  St.  Louis, 
2  Dodson,  R.  210. 

*  Vattel,  B.  2,  ch.  7,  ^84,85. 


CH.  I.]  INTRODUCTORY   REMARKS.  13 

flict  of  the  laws  of  difTerent  nations,  in  their  actual 
application  to  modern  commerce  and  intercourse,  is  a 
most  interesting  and  important  branch  of  public  law. 
To  no  part  of  the  world  is  it  of  more  interest  and  im- 
portance than  to  the  United  States,  since  the  union  of 
a  national  government  with  already  that  of  twenty-six 
distinct  states,  and  in  some  respects  independent  states, 
necessarily  creates  very  complicated  private  relations 
and  rights  between  the  citizens  of  those  states,  which 
call  for  the  constant  administration  of  extra-municipal 
principles.  This  branch  of  public  law  may,  therefore, 
be  fitly  denominated  private  international  law,  since  it 
is  chiefly  seen  and  felt  in  its  application  to  the  com- 
mon business  of  private  persons,  and  rarely  rises  to  the 
dignity  of  national  negotiations,  or  of  national  contro- 
versies.^ 

§  10.  The  subject  has  never  been  systematically 
treated  by  writers  on  the  common  law  of  England ; 
and,  indeed,  seems  to  be  of  very  modern  growth  in  that 
kingdom;  and  can  hardly,  as  yet,  be  deemed  to  be 
there  cultivated,  as  a  science,  built  up  and  defined  with 
entire  accuracy  and  precision  of  principles.  More  has 
been  done  to  give  it  form  and  symmetry  within  the 
last  fifty  years,  than  in  all  preceding  time.  But  much 
yet  remains  to  be  done,  to  make  it,  what  it  ought  to 
be,  in  a  country  of  such  vast  extent  in  its  commerce, 
and  such  universal  reach  in  its  intercourse  and  polity.^ 


1  The  civilians  are  accustomed  to  call  the  questions  arising  from  the 
conflict  of  foreign  and  domestic  laws  mixed  questions,  questions  mixtcs. 
1  Froland,  M6moires  des  Statuts,  ch.  1,  ^  9,  p.  13  ;  Id.  ch.  7,  ^  1, 
p.  155. 

2  Mr.  Chancellor  Kent  has  remarked,  that  these  topics  of  international 
law  were  almost  unknown  in  the  English  courts,  prior  to  the  time  of  Lord 
Hardwicke  and  Lord  Mansfield  ;  and  that  the  English  lawyers  seem  gene- 

CONFL.  2 


14  CONFLICT    OF    LAWS.  [CH.  I. 

§  11.  The  civilians  of  continental  Europe  have  ex- 
amined the  subject  in  many  of  its  bearings  with  a 
much  more  comprehensive  philosophy,  if  not  with  a 
more  enlightened  spirit.  Their  works,  however,  abound 
with  theoretical  distinctions,  which  serve  little  other 
purpose  than  to  provoke  idle  discussions,  and  with 
metaphysical  subtilties,  which  perplex,  if  they  do  not 
confound,  the  inquirer.  They  are  also  mainly  addressed 
to  questions  intimately  connected  with  their  own  pro- 
vincial or  municipal  laws  and  customs,  some  of  which 
are  of  a  purely  local,  and  others  of  a  technical  and 
peculiar  character ;  and  they  do  not  always  separate 
those  considerations  and  doctrines,  which  belong  to  the 
elements  of  the  general  science,  from  those,  which  maj^ 
be  deemed  founded  in  particular  national  interests  and 
local  ordinances.  Precedents,  too,  have  not,  either  in 
the  courts  of  continental  Europe,  or  in  the  juridical 
discussions  of  its  eminent  jurists,  the  same  force  and 
authority,  which  we,  who  live  under  the  influence  of 
the  common  law,  are  accustomed  to  attribute  to  them ; 
and  it  is  unavoidable,  that  many  differences  of  opinion 
should  exist  among  them,  even  in  relation  to  leading 
principles.  But  the  strong  sense  and  critical  learning 
of  the  best  minds  among  foreign  jurists  have  generally 
maintained  those  doctrines  which  at  the  present  day 
are  deemed  entirely  persuasive  and  satisfactory  with 
us,  who  live  under  the  common  law,  as  well  for  the 
solid  grounds,  on  which  they  rest,  as  for  the  universal 
approbation,  with  which  they  are  entertained  by  courts 
of  justice.^ 

rally  to  have  been  strangers  to  the  discussions  on  foreign  law  by  the  cele- 
brated jurists  of  continental  Europe.     2  Kent,  Comm.  Lect.  39,  p.  455, 
3d  edit. 
1  The  late  Mr.  Livermore,  (whose  lamented  death  occurred  in  July, 


CH.  I.]  INTRODUCTORY   REMARKS.  15 

§  12.  In  their  discussions  upon  this  subject  the  civi- 
lians have  divided  statutes  into  three  classes,  personal, 
real,  and  mixed.  By  statutes,  they  mean,  not  the  posi- 
tive legislation,  which  in  England  and  America  is 
known  by  the  same  name,  viz.  the  acts  of  Parliament 
and  of  other  legislative  bodies,  as  contradistinguished 
from  the  common  law ;  but  the  whole  municipal  law  of 
the  particular  state,  from  whatever  source  arising.^ 
Sometimes  the  word  is  used  by  them  in  contradistinc- 
tion to  the  imperial  Homan  law,  which  they  are  accus- 
tomed to  style,  by  way  of  eminence,  the  common  law, 
since  it  constitutes  the  general  basis  of  the  jurispru- 
dence of  all  continental  Europe,  modified  and  restrained 
by  local  customs  and  usages,  and  positive  legislation." 
Paul  Voet  says ;  Seqiiitiir  jus  'particiilare,  sen  non  com- 
mune, quod  lino  vocahilo  iisitatissimo  Statutum  dicitur, 
quasi  statum  piibliciim  tiiens?     Appellatur  etiam  jus  muni- 


1833,)  in  his  learned  Dissertations  on  the  Contrariety  of  Laws,  printed  at 
New  Orleans  in  1828,  has  enumerated  the  principal  continental  writers, 
who  have  discussed  this  subject  at  large.  I  gladly  refer  the  reader  to 
these  Dissertations,  as  very  able  and  clear.  There  is  also  a  catalogue  of 
the  principal  writers  in  Boullenois,  Trait6  des  Statuts,  Preface,  Vol.  1, 
p.  29,  note  (1.)  ;  in  Dupin's  edition  of  Cannus,  Profession  d'Avocat, 
Vol.  2,  tit.  7,  §  5,  art.  1561  to  1566  ;  in  Froland,  M6moires  concernans 
les  Qualit6s  des  Statuts,  Vol.  1,  P.  1,  ch.  2,  p.  15  ;  in  Bouhier,  Coutum. 
de  Bourg.  Vol.  1,  ch.  23,  p.  450  ;  and  in  Mr.  Burge's  recent  Commenta- 
ries on  Colonial  and  Foreign  Law,  Pt.  1,  ch.  1,  p.  6  to  32.  In  the  prepa- 
ration of  these  Commentaries  I  have  availed  myself  chiefly  of  the  writings 
ofRodenburg,  the  Voets  (father  and  son,)  Burgundus,  Du  Moulin  (Moli- 
naeus,)  Froland,  Boullenois,  Bouhier,  and  Huberus,  as  embracing  the 
most  satisfactory  illustrations  of  the  leading  doctrines.  My  object  has  not 
been  to  engage  in  any  critical  examination  of  the  comparative  merits  or 
mistakes  of  the  different  commentators  ;  but  rather  to  gather  from  each  of 
them  what  seemed  most  entitled  to  respect  and  confidence. 

1  Bouhier,  Coutum.  de  Bourg.  Vol.  I,  p.  173  to  179,  i5>9  to  32  ;  1  Hertii 
Opera.  De  Collisione  Legum,  ^  4,  art.  5,  p.  121 ;    Id.  p.  172,  edit.  1716. 

2  Bouhier,  Coutum.  de  Bourg.  Vol.  1,  p.  175,  178,  ^  16,  28,  29. 

3  P.  Voet,  de  Statut.  ^  4,  ch.  1,  ^  1  ;  Id.  p.  123,  edit.  1661. 


16  CONFLICT    OF   LAWS.  [CH.  I. 

cipale.  Etiam  injure  nostro  dicta  lex,  sen  lex  municipii, 
qiiemadmodum  in  genere  signal  jus  commune}  And  he 
defines  it  thus ;  Est  jus  particidare  ah  alio  legislators 
quam  Imperatore  constitutum}  Dico,  jus  particulare,  in 
quantum  opponitur  juri  communiy  non  prout  est  gentium 
et  naturale,  sed  prout  est  jus  civile  Romanorum,  populo 
Romano  commune,  et  omnibus,  qui  illo  populo  parehant? 
Additur,  ah  alio  legislatore,  cum  qui  statuta  condit,  recte 
et  suo  modo  legislator  appelletur,  id  ipsa  statuta  leges 
dicuntur  municipioru7n.  Et  qiddem,  ab  alio,  quia  regula- 
riter  statuta  non  condit  Imperator  ;  excipe,  nisi  municipibus 
jura  det,  statuta  prcescribat,  secundum  quce  ipsi  sua  regant 
municipia.'^  Denique  adjicitur,  quam  imperatore,  quod 
licet  Imperator  solummodo  dicatiir  legislator,  id  tamen,  non 
alio  sensu  obtineat,  quam  quod  sids  legibus  non  hunc  ant 
ilium  popidum,  verum  omnes  constringat,  quos  suce  clemen- 
'  tice  regit  imperium?  Merlin  says ;  "  This  term  statute, 
is  generally  applied  to  all  sorts  of  laws  and  regulations. 
Every  provision  of  law  is  a  statute,  which  permits, 
ordains,  or  prohibits  any  thing."  Ce  terme,  (statut,) 
s'applique  en  general  a  toutes  sortes  ch  his  et  de  reglemens. 
Chaque  disposition  d'une  loi  est  un  statut,  qui  permet, 
ordonne,  on  defend  quelque  chose} 

§  13.  The  civilians  have  variously  defined  the  differ- 
ent classes  of  statutes  or  laws.  The  definitions  of 
Merlin  are  sufficiently  clear  and  explicit  for  all  the 


1  p.  Voet,  de  Statut.  §  4,  ch.  1,  ^  1  ;  Id.  p.  123,  edit.  1661. 

2  P.  Voet,  de  Statut.  M,  ch.  1,^2;  Id.  p.  124,  edit.  1661. 

3  Ibid. 

'i  P.  Voet,  de  Statut.  ^  4,  ch.  1,  ^  ;  Id.  p.  125,  edit.  1661. 

5  P.  Voet,  de  Statut.  §  4,  ch.  1,  §  2  ;  Id.  p.  125,  edit.  1661 ;  Id.  §  1, 
ch.  4  ;  Id.  p.  35,  edit.  1661 ;  Liverm.  Dissert.  II,  p.  21,  note  (b,)  edit. 
1828. 

6  Merlin,  Repertoire,  art.  Statut.  Vol.  31,  edit.  1828,  Bruxelles ;  Saul 
V.  His  Creditors,  17  Martin,  R.  569,  589. 


CH.  I.]  INTRODUCTORY   REMARKS.  17 

purposes  of  the  present  work,  and  will  therefore  be 
here  cited.  The  distinctions  between  the  different 
classes  are  very  important  to  be  observed  in  consulting 
foreign  Jurists,  since  they  have  been  adopted  by  them 
from  a  very  early  period,  and  pervade  all  their  discus- 
sions. Personal  statutes  are  held  by  them  to  be  of 
general  obligation  and  force  everywhere  ;  but  real  sta- 
tutes are  held  to  have  no  extra-territorial  force  or 
obligation.^  "  Personal  statutes,"  (says  Merlin.)  "  are 
those,  which  have  principally  for  their  object  the  per- 
son, and  treat  only  of  property  {hiens)~  incidentally 
{accessoirement) ;  such  are  those,  which  regard  birth, 
legitimacy,  freedom,  the  right  of  instituting  suits,  ma- 
jority as  to  age,  incapacity  to  contract,  to  make  a  will, 
to  plead  in  proper  person,  &c.^  Real  statutes  are 
those,  which  have  principally  for  their  object  property 
(Mens),  and  which  do  not  speak  of  persons,  except  in 
relation  to  property ;  such  are  those,  which  concern 
the  disposition,  which  one  may  make  of  his  property, 
either  while  he  is  living,  or  by  testament.''  Mixed 
statutes  are  those,  which  concern  at  once  persons  and 
property."  But  Merlin  adds,  "  that  in  this  sense  almost 
all  statutes  are  mixed,  there  being  scarcely  any  law 
relative  to  persons,  which  does  not  at  the  same  time 


1  Rodenburg,  De  Statut.  Divers,  c.  3,  p.  7 ;  1  Froland,  M6mories  des 
Statuts.  ch.  7,  §  1,  2. 

2  The  term  "  biens,"  in  the  sense  of  the  civilians  and  continental 
jurists,  comprehends  not  merely  goods  and  chattels,  as  in  the  common 
law,  but  real  estate.  But  the  distinction  between  movable  and  immovable 
property,  is  nevertheless  recognized  by  them,  and  gives  rise  in  the  civil 
law,  as  well  as  in  the  common  law,  to  many  important  distinctions  as  to 
rights  and  remedies, 

3  See  Pothier,  Coutum.  d'0rl6ans,  ch.  1,  §  1,  art.  6. 

4  See  Pothier,  Coutum.  d'0rl6ans,  ch.  1,  ^  2,  art.  21. 

2* 


18  .    CONFLICT   OF   LAWS.  [CH.  I. 

relate  to  things."  ^  He,  therefore,  deems  the  last  classi- 
fication unnecessary,  and  holds,  that  every  statute 
ought  to  receive  its  denomination  according  to  its 
principal  object.  As  that  object  is  real,  or  personal, 
so  ought  the  quality  of  the  statute  to  be  determined.^ 
But  this  distribution  into  three  classes  is  usually  adopted, 
precisely  as  it  is  stated  by  Rodenburg ;  —  Atit  enim 
statidiim  smpliciter  disponit  de  personis ;  ant  soliimmodo 
de  rehis  ;  aiit  conjiinctim  de  utrisqiie?  And  he  proceeds 
to  explain  this  division  in  the  following  manner.  Qiice 
ita  constridim  dicta  sic  habentur  explicaUiis :  Aiit  universus 
personam  status,  aid  conditio  in  disposiiione  statidi  vertitur, 
citra  ullam  rerimi  adjectionem,  adeoqiie  de  personis  agitiir 


1  Merlin,  Repertoire,  Statut. ;  Id.  Autorisation  Maritale,  ^  10, 

2  Ibid. 

3  Rodenburg,  De  Statut.  Diversitate,  ch.  2,  p.  4  ;  Le  Brun,  Traite  de 
la  Communaute,  Liv.  2,  ch.  3,  ^  20  to  §  48  ;  Bouhier,  Centum,  de  Bourg. 
ch.  21  to  ch.  37  ;  Voet,  de  Statut.  ^  4,  ch.  2,  p.  116  to  p.  124  ;  Id.  p.  129 
to  p.  143,  edit.  1661  ;  Livermore,  Dissert.  ^  65  to  ^  162  ;  1  Froland, 
M^moires,  Qualit6  des  Statuts,  P.  1,  ch.  3,  p.  25  ;  Id.  ch.  4,  p.  49,  ch.  5, 
p.  81,  ch.  6,  p.  114  ;  BouUenois,  Trait6  des  Statuts,  vol.  1,  preface,  p.  22; 
Polhier,  Coutum.  d'Orl^ans,  ch.  1,  ^  1,  art.  6,  7,  8.  —  BouUenois  distri- 
butes all  statutes  into  three  classes:  "Ou  le  statut  dispose  simplement 
des  personnes  ;  ou  il  dispose  sinaplement  des  choses  ;  ou  il  dispose  tout  a 
la  fois  des  personnes  et  des  choses."  1  BouUenois,  Traite  des  Statuts 
reels  et  personnels,  tit.  1,  ch.  2,  obs.  2,  p.  25  ;  Id.  Princ.  G6n.  p.  4,  6. 
Mr.  Henry,  in  his  Dissertation  on  Personal,  Real,  and  Mixed  Statutes, 
has  adopted  the  like  distribution,  without  any  acknowledgment  of  the 
source,  (BouUenois,)  from  which  he  has  drawn  all  his  materials.  See 
Henry  on  Personal  and  Real  Statutes,  ch.  1,  ^  2  to  ch.  3,  ^  1,  p.  2  to  33. 
See  also  Livermore's  Dissert.  2,  §>  65  to  ^  162,  p.  62  to  106  ;  Id.  ^  168, 
p.  109.  Mr.  Justice  Porter,  in  delivering  the  opinion  of  the  Supreme 
Court  of  Louisiana,  in  the  case  of  Saul  v.  His  Creditors,  (17  Martin,  R. 
569,  590,)  said,  that  foreign  jurists,  by  a  personal  statute,  mean  that, 
which  follows,  and  governs  the  party  subject  to  it,  wherever  he  goes  ;  and 
a  real  statute  is  that,  which  controls  things,  and  does  not  extend  beyond 
the  limits  of  the  country,  from  which  it  derives  its  authority.  Is  not  this 
a  description  of  the  effect  of  such  statutes,  rather  than  a  definition  of  their 
nature?     See  Id.  593. 


en.  I.]  INTRODUCTORY   REMARKS.  19 

in  ahstrado,  absque  iilld  consideraiione  rcriim ;  lit,  verhi 
gratia,  quote  quis  oetatis  anno  fui  Juris  sit,  quando  exeat 
parentum  potestate ;  de  quihus  ^  consimilihiis  exemplis 
mox  fusius.  Aid  in  solas  nudasqiie  res  statidi  disposiiio 
dirigitur,  id  nidlum  intervenire  necesse  sit  actum  hominis, 
aut  aliquam  concurrere  personw  operam  ;  cujusmodi  sunt, 
qidhus  rcrum  successionihus  ah  intestato  Jus  ponitiir ;  id 
bona  materna  cedant  maternis,  paterna  paternis,  notJd  suc- 
cedant  matribus,  non  succedant  patrihus  ;  quando  succedatur 
in  stirpes,  quando  in  capita  ;  qiice  Jura  successionum  ab 
intestato  appellaveris.  Aid  permittit  denique,  vetat,  aut 
ordinat,  actum  a  personis  circa  res  peragendum,  ex  idriusqiie 
complexn  constructnm  Staiidum,  contra  quod,  id  queat  com- 
mitti  quippiam,  personce  actum  intervenire  necesse  est.  Quo 
pertinet.  Sine  indulto  Principis  derebus  suis  nemo  testator  ; 
conjuges  sibi  invicem  non  leganto ;  vir  citra  consensum 
iixorium  res  soli  non  alienato} 

§  14.  In  the  application  of  tliis  classification  to  par- 
ticular cases,  there  has  been  no  inconsiderable  diversity 
of  opinion  among  the  civilians.  What  particular  sta- 
tutes are  to  be  deemed  personal,  and  ■what  real ;  when 
they  may  be  said  principally  to  regard  persons,  and 
when  principally  to  regard  things ;  these  have  been 
vexed  questions,  upon  which  much  subtilty  of  discus- 
sion, and  much  heat  of  controversy,  have  been  displayed. 
The  subject  is  in  itself  full  of  intrinsic  difficulties ;  but 
it  has  been  rendered  more  perplexed  by  metaphysical 
niceties,  and  over-curious  learning.^     Hertius  admits, 


^  Rodenburg,  De  Statut.  Divers,  ch.  2,  p.  4,  (2  Boullenois,  Appendix, 
P  4.) 

~  See  1  Boullenois,  tit.  1,  ch.  1,  Observ.  2,  p.  IG,  &c. ;  Id.  ch.  2,  Obs.  5, 
p.  114  to  122  ;  1  Froland,  Mem.  des  Slat.  ch.  2,  p.  15  ;  2  Kent,  Comm. 
Lect.  39,  p.  453  to  457,  (3d  edit.)  ;  Saul  v.  His  Creditors,  17  Martin,  R. 


20  CONFLICT    OF   LAWS.  [CH.  L 

that  these  subtilties  have  so  perplexed  the  subject,  that 
it  is  difficult  to  venture  even  upon  an  explanation. 
His  language  is ;  De  collisii  Icgiim  anceps,  difficilis,  et 
Me  diffusa  est  disimtatio,  quam  nescio,  an  qidsqiiam  expli- 
eare  totam  aggressus  fiierit}  And  in  another  place,  he 
adds  ;  Cceterum  Juniorihis  plerisque  placidt  distinctio  inter 
statiita,  realia,  personalia,  et  mixta.  Verum  in  iis  definien- 
dis  mirum  est,  quam  sudant  Doctores?      Bartolus   has 


569  to  596  ;  Henry  on  Foreign  Law,  ch.  3,  p.  23,  &c.  —  The  Supreme 
Court  of  Louisiana  have  made  some  very  just  remarks  on  this  subject. 
"  We  are  led,"  (says  Mr.  Justice  Porter,  in  delivering  the  opinion  of  the 
Court,)  "  into  an  examination  of  the  doctrine  of  real  and  personal  statutes, 
as  it  is  called  by  the  continental  writers  cf  Europe  ;  a  subject  the  most 
intricate  and  perplexed  of  any,  that  has  occupied  the  attention  of  lawyers 
and  courts  ;  one  on  which  scarcely  any  writers  are  found  entirely  to  agree, 
and  on  which  it  is  rare  to  find  one  consistent  with  himself  throughout. 
We  know  of  no  matter  in  jurisprudence  so  unsettled,  or  none,  that  should 
more  teach  men  distrust  of  their  own  opinions,  and  charity  for  those  of 
others."  Saul  v.  His  Creditors,  (17  Martin,  R.  569,  588.)  Chancellor 
D'Aguesseau  has  attempted  a  definition,  or  test,  of  real  and  personal  laws. 
He  says  :  "  The  true  principle  in  this  matter  is,  to  examine,  if  the  statute 
has  property  directly  for  its  object,  or  its  destination  to  certain  persons,  or 
its  preservation  in  families,  so  that  it  is  not  the  interest  of  the  person,  whose 
rights  or  acts  are  examined,  but  the  interests  of  others,  to  whom  it  is 
intended  to  assure  the  property,  or  the  real  rights,  which  were  the  cause 
of  the  law.  Or,  if,  on  the  contrary,  all  the  attention  of  the  law  is  directed 
towards  the  person,  to  provide  in  general  for  his  qualifications,  or  his  general 
absolute  capacity,  as  when  it  relates  to  the  qualities  of  major  or  minor,  of 
father  or  son,  of  legitimate  or  illegitimate,  of  ability  or  inability  to  contract, 
by  reason  of  personal  causes.  In  the  first  hypothesis,  the  statute  is  real ; 
in  the  second,  it  is  personal."  Cited  in  17  Martin,  R.  p.  594  ;  D'Aguesseau, 
CEuvres,  tom.  4,  p.  660,  4to.  edit.  How  unsatisfactory  is  this  description, 
when  applied  in  practice. 

1  1  Hertii  Opera,  De  Collis.  Legum,  ^  1,  n.  1,  p.  91  ;  Id.  §  4,  n.  3, 
p.  121,  122  ;  Id.  p.  129,  and  p.  170,  edit.  1716. 

2  1  Hertii  Opera,  §  4,  n.  3,  p.  120  ;  Id.  p.  170,  edit,  1716.  See  also 
1  Froland,  M6m.  Qualite  des  Statut.  ch.  3  to  ch.  7  ;  Bouhier,  Coutum.  de 
Bourcr.  ch.  23,  ^  58,  59.  —  Mr.  Livermore  has  given  a  concise  view  of  the 
various  opinions  of  foreign  jurists  on  this  subject,  which  will  well  reward 
a  diligent  perusal.     Liverm.  Dissert.  2,  §  65  to  ^  162.     His  own  opinions. 


CH.  I.]  INTRODUCTORY   REMARKS.  21 

furnished  a  memorable  example  of  these  niceties.  After 
remarking  upon  the  distinction  between  personal  and 
real  statutes,  and  the  mode  of  distinguishing  the  one 
from  the  other,  and  that  in  England  the  custom  obtains 
of  the  eldest  son's  succeeding  to  all  the  property,  he 
says ;  Mihi  videtur,  quod  verha  statidi  seu  consuetudinis, 
sunt  diligcnter  ininenda.  Aid  ilia  disponiint  circa  res  ;  id 
per  licec  verha,  "  Bona  decedentis,  id  veniaid  in  Primogeni- 
tiini ; "  et  tunc  de  omnibus  horn's  jndicaho  secundum  nsum 
et  statutum,  nhi  res  sunt  siiuatw,  quia  Jus  affecit  res  ipsas, 
sive  possideaniur  a  cive,  sive  ad  alvena.  Aut  verla  staiidi 
seu  consueindinis  disponiint  circa  personas ;  id  per  hccc 
verba  ;  "  Priomgenitus  succedat "  ;  et  tunc,  aut  ille  talis 
decedens  non  erat  de  Anglid,  sed  ihi  lidberet  possessiones  ; 
et  tunc  tale  statutum  ad  eum  et  ejus  Jilios  non  porrigitiir, 
quia  dispositio  circa  personas  non  porrigitur  ad  forenses} 
Aid  talis  decedens  erat  Anglicus,  et  tunc  filius  primogenitus 
succederet  in  bonis,  quce  sunt  in  Anglid,  et  in  aliis  succedcret 
de  jure  communi.  So  that,  according  to  Bartolus,  if  a 
statute  declares  in  words,  that  "  The  estate  of  the  intes- 
tate shall  descend  to  the  eldest  son,"  {Bona  decedentis  id 
verdant  in  primogenitu7n,)  it  is  a  real  statute ;  if  it  says 
in  words  "  The  eldest  son  shall  succeed  to  the  estate," 
{Primogenitus  succedat,)  it  is  a  personal  statute.^     This 


which  exhibit  great  acuteness,  will  also  be  found  in  the  same  work  from 
§  163  to  ^  214.  The  subject  is  very  amply  discussed  in  Froland,  Boullenois, 
Bouhier,  Le  Brun,  and  Rodenburg. 

1  Bartolus,  ad  Cod.  Lib.  1,  tit.  1,  De  Sum.  Trinit.  1.  1,  Cunctos  populus, 
n.  42  ;  Liverm.  Dissert.  ^  G8,  69,  p.  63,  64  ;  1  Boullenois,  Observ.  2,  p. 
16,  17.  —  The  text  of  Bartolus,  in  the  only  edition,  to  which  I  have 
access,  (Venet.  1602,)  abounds  exceedingly  in  abbreviations,  so  that  in 
some  few  instances  I  am  not  perfectly  sure,  that  I  have  given  the  exact 
word. 

3  1  Boullenois,  tit.  1,  ch.  1,  Obs.  2,  p.  16,  17;  Liverm.  Dissert.  ^  3, 
p.  22,  23  ;  Id.  ^  67,  68,  p.  62,  63  ;  Mr.  Justice  Porter  in  the  case  of  Saul 


22  CONFLICT    OF   LAWS.  [CH.  I. 

distinction  has  been  justly  exploded  by  other  civilians, 
as  the  mere  order  and  construction  of  the  words  of  the 
statute,  and  not  its  objects,  would  otherwise  decide  its 
character.^ 


V.  His  Creditors,  17  Martin,  R.  569,  590,  to  595  ;  Burgundus,  Tract.   1, 
^  4,  p.  16  ;  Stockman,  Decis.  125,  §  8,  p.  263. 

I  Ibid.  p.  19  ;  Liverm.  Dissert.  2,  §  67,  68  ;  Id.  §  69  to  77  ;  1  Froland, 
Mem.  Statut.  P.  1,  ch.  3,  §  3,  4  ;  Bouhier,  Coutum.  de  Bourg.  ch.  53,  §  58 
to  99  — The  opinion  of  the  Court  by  Mr.  Justice  Porter,  in  Saul  v.  His 
Creditors,  17  Martin,  R.  569,  590  to  596,  illustrates  this  subject  in  a  very 
striking  manner.  "  According  to  the  Jurists,"  (says  he,)  "  of  those 
countries,  a  personal  statute  is  that,  which  follows  and  governs  the  party 
subject  to  it  wherever  he  goes.  The  real  statute  controls  things,  and 
does  not  extend  beyond  the  limits  of  the  country,  from  which  it  derives 
its  authority.  The  personal  statute  of  one  country  controls  the  personal 
statute  of  another  country,  into  which  a  party  once  governed  by  the  for- 
mer, or  who  may  contract  under  it,  should  remove.  But  it  is  subject  to 
a  real  statute  of  the  place,  where  the  person  subject  to  the  personal  should 
fix  himself,  or  where  the  property,  on  which  the  contest  arises,  may  be 
situated.  So  far  the  rules  are  plain  and  intelligible.  But  the  moment 
we  attempt  to  discover  from  these  writers,  what  statutes  are  real,  and 
what  are  personal,  the  most  extraordinary  confusion  is  presented.  Their 
definitions  often  differ,  and  when  they  agree  on  their  definitions,  they 
dispute  as  to  their  application.  Bartolus,  who  was  one  of  the  first,  by 
whom  this  subject  was  examined,  and  the  most  distinguished  jurist  of  his 
day,  established  as  a  rule,  that,  whenever  the  statute  commenced  by 
treating  of  persons,  it  was  a  personal  one  ;  but  if  it  began  by  disposing 
of  things,  it  was  real.  So  that  if  a  law,  as  the  counsel  for  the  appellants 
has  stated,  was  written  thus  :  '  The  estate  of  the  deceased  shall  be 
inherited  by  the  eldest  son,'  the  statute  was  real;  but  if  it  said,  'The 
eldest  son  shall  inherit  the  estate,'  it  was  personal.  This  distinction 
though  purely  verbal,  and  most  unsatisfactory,  was  followed  for  a  long 
time,  and  sanctioned  by  many,  whose  names  are  illustrious  in  the  annals 
of  jurisprudence  ;  but  it  was  ultimately  discarded  by  all.  D'Argentr^, 
who  rejected  this  rule,  to  real  and  personal  statutes  added  a  third,  which 
he  called  mixed.  The  real  statute,  according  to  this  writer,  is  that 
which  treats  of  immovables  ;  In  quo  de  rebus  soli,  id  est  immobilibus 
agitur.  And  the  personal,  that  which  concerns  the  person  abstracted  from 
things  ;  Statutum  personale  est  illud,  quod  afficit  personam  universaliter, 
abstracte  ab  omni  materia  reali.  The  mixed  he  slates  to  be  one,  which 
concerns  both  persons  and  things.  D'Argentre,  Comm.  ad  Leg.  Brit,  des 
Donat.  art.  228,  n.  5  to  n.  9  ;  tom.  1,  p.  648.    This  definition  of  D'Argentr6 


CH.   I.]  INTRODUCTORY   REMARKS.  23 

§  15.  Le  Bmn  says,  that  in  order  to  ascertain,  whether 
a  statute  is  personal  or  not,  it  is  necessary  to  examine, 


of  a  personal  statute  has  been  adopted  by  every  writer,  who  has  treated 
of  this  matter.  A  long  list  of  them,  amounting  to  twenty-five,  is  given 
by  Froland,  in  his  M6moires  concernans  la  Qualit6  des  Statuts,  among 
which  are  found  Burgundus,  Rodenburg,  Stockmans,  Voet,  and  Dumouliti. 
(Froland,  M^moires  concernans  la  Qualit6  de  Statuts,  ch.  5,  No.  1.)  13ut 
the  definition,  which  he  has  given  of  a  real  statute,  does  not  seem  to  have 
been  so  generally  adopted.  It  was,  however,  followed  by  Burgundus, 
Rodenburg,  and  Stockmans.  Boullenois,  who  is  one  of  the  latest  writers, 
attacks  the  definitions  given  by  D'Argentr6,  and,  as  he  supposes,  refutes 
them ;  he  adds  others,  which  appear  to  be  as  little  satisfactory,  as  those 
he  rejects.  He  divides  personal  statutes  into  personal  particular,  and  per- 
sonal universal  ;  personal  particular  he  subdivides  again  into  pure  per- 
sonal, and  personal  real.  (Boullenois,  Traile  de  la  Personality  et  de  la 
Realit6  des  lois,  tit.  1,  cap.  2,  Obs.  4,  p.  44  to  p.  52.)  Voet  has  two 
definitions,  one,  that  a  real  statute  is  that,  which  affects  principally  things, 
though  it  also  relates  to  persons  ;  and  the  other,  that  a  personal  statute  is 
that,  which  affects  principally  persons,  although  it  treats  also  of  things. 
It  would  be  a  painful  and  a  useless  task,  to  follow  these  authors  through 
all  their  refinements.  President  Bouhier,  who  wrote  about  the  same  time 
as  Boullenois,  and  who  has  treated  the  subject  as  extensively  as  any  other 
writer,  after  quoting  the  definitions  just  given,  and  others,  says,  that  they 
are  all  defective,  and  that  he  cannot  venture  on  any,  until  the  world  are 
more  agreed  what  statutes  are  real,  and  what  are  personal.  While  they 
remain  so  uncertain,  he  thinks  the  best  way  is  to  follow  the  second  defini- 
tion of  Voet,  which  is  ;  *  that  a  real  statute  is  that,  which  does  not  extend 
beyond  the  territory  within  which  it  is  passed,  and  a  personal  is  that, 
which  does.'  (Bouhier,  sur  les  Coutumes  de  Bourgogne,  ch.  23,  No.  59.) 
This  last  mode  of  distinguishing  statutes,  which  teaches  us,  what  effect  a 
statute  should  have,  by  directing  us  to  inquire  what  effect  it  has,  is  quite 
as  unsatisfactory  as  the  rule  given  by  Bartolus,  who  judged  of  it  by 
the  words  with  which  it  commenced.  The  rules  given  by  Chancellor 
D'Aguesseau  are  perhaps  preferable  to  any  other.  '  That,'  says  he, 
'  which  truly  characterizes  a  real  statute,  and  essentially  distinguishes  it 
from  a  personal  one,  is  not,  that  it  should  be  relative  to  certain  personal 
circumstances,  or  certain  personal  events ;  otherwise,  we  should  be  obliged 
to  say,  that  the  statutes  which  relate  to  the  paternal  power,  the  right  of 
wardship,  the  tenancy  by  courtesy,  (droit  de  viduit^,)  the  prohibition  of 
married  persons  to  confer  advantages  on  each  other,  are  personal  statutes, 
and  yet  it  is  clear,  in  our  jurisprudence,  that  they  are  considered  as  real 
statutes,  the  execution  of  which  is  regulated,  not  by  the  place  of  domicil, 


24  CONFLICT    OF   LAWS.  [CH.   I. 

whether  it  universally  governs  the  state  of  the  person, 
independent  of  property.  If  it  does  not  universally 
govern  the  state  of  the  person,  but  only  particular 
acts  of  the  person,  it  is  not  personal.     Thus,  a  statute. 


but  by  that,  where  the  property  is  situated.  The  true  principle  in  this 
matter  is,  to  examine  if  the  statute  has  property  directly  for  its  object,  or 
its  destination  to  certain  persons,  or  its  preservation  in  families,  so  that  it 
is  not  the  interest  of  the  person,  whose  rights  or  acts  are  examined,  but 
the  interest  of  others,  to  whom  it  is  intended  to  assure  the  property,  or 
the  real  rights  which  were  the  cause  of  the  law.  Or,  if,  on  the  contrary, 
all  the  attention  of  the  law  is  directed  towards  the  person,  to  provide  in 
general  for  his  qualifications,  or  his  general  and  absolute  capacity  ;  as, 
when  it  relates  to  the  qualities  of  major  or  minor,  of  father  or  of  son,  legi- 
timate or  illegitimate,  ability  or  inability  to  contract,  by  reason  of  personal 
causes.'  '  In  the  first  hypothesis  the  statute  is  real,  in  the  second  it  is 
personal,  as  is  well  explained  in  these  words  of  D'Argentr6  ;  "  Cum  sta- 
tutum  non  simpliciter  inhabilitat,  sed  ratione  fundi  aut  juris  realis  alteram 
respicientis  extra  personas  contrahentes,  totas  banc  inhabilitatem  non  egredi 
locum  statuti."  '  (CEuvres,  D'Aguesseau,  vol.  4,  660,  cinquante-quatrieme 
plaidoyer.)  This  definition  is,  we  think,  better  than  any  of  the  rest ; 
though  even  in  the  application  of  it  to  some  cases,  difficulty  would  exist. 
If  the  subject  has  been  susceptible  of  clear  and  positive  rules,-  we  may 
safely  believe  this  illustrious  man  would  not  have  left  it  in  doubt ;  for  if 
any  thing  be  more  remarkable  in  him  than  his  genius  and  his  knowledge, 
it  is  the  extraordinary  fulness  and  clearness,  with  which  he  expresses  him- 
self on  all  questions  of  jurisprudence.  When  he,  therefore,  and  so  many 
other  men,  of  great  talents  and  learning,  are  thus  found  to  fail  in  fixing 
certain  principles,  we  are  forced  to  conclude,  that  they  have  failed,  not 
from  want  of  ability,  but  because  the  matter  was  not  susceptible  of  being 
settled  on  certain  principles.  They  have  attempted  to  go  too  far  ;  to  define 
and  fix  that,  which  cannot  in  the  nature  of  things  be  defined  and  fixed. 
They  seem  to  have  foi^otten,  that  they  wrote  on  a  question,  which  touched 
the  comity  of  nations,  and  that,  that  comity  is,  and  ever  must  be,  uncer- 
tain ;  that  it  must  necessarily  depend  on  a  variety  of  circumstances,  which 
cannot  be  reduced  within  any  certain  rule  ;  that  no  nation  will  suffer  the 
laws  of  another  to  interfere  with  her  own,  to  the  injury  of  her  citizens  ; 
that,  whether  they  do  or  not,  must  depend  on  the  condition  of  the  country, 
in  which  the  foreign  law  is  sought  to  be  enforced,  the  particular  law  of 
her  legislation,  her  policy,  and  the  character  of  her  institutions  ;  that  in 
the  conflict  of  laws,  it  must  be  often  a  matter  of  doubt,  which  should  pre- 
vail, and  that,  whenever  that  doubt  does  exist,  the  court,  which  decides, 
will  prefer  the  laws  of  its  own  country  to  that  of  the  stranger." 


CH.  l]  introductory  remarks.  25 

-ffliicli  prohibits  married  persons  from  making  dona- 
tions to  each  other,  is  purely  real  and  local ;  because 
it  regulates  a  particular  act  only.  And  a  statute,  to  be 
personal,  must  regulate  the  state  of  the  person  without 
speaking  of  property,  (Mens.)  Thus-,  a  statute,  -which 
excludes  females  from  inheriting  fiefs,  in  favor  of  males ; 
or,  which  excludes  a  beneficiary  heir  from  the  succession, 
in  favor  of  the  simple  heir ;  or,  which  excludes  a  daugh- 
ter, who  is  endowed,  from  the  succession,  is  real  and 
local ;  for  all  these  statutes  speak  of  property.  For  the 
same  reason,  he  holds  the  Senattis-consultum  Velleianiim, 
by  which  a  married  woman  was  prohibited  from  binding 
herself  for  the  debt  of  another  person,^  (and  which  was 
borrowed  from  the  Roman  Law  into  the  customary  juris- 
prudence of  some  of  the  French  provinces,)  to  be  a  real 
statute ;  because  it  regulates  a  particular  act  of  the 
person  only.^  And  he  adds,  that  the  definition  of  a 
real  statute  results  from  that  of  a  personal  statute.  In 
one  word,  a  statute  is  real,  which  regulates  a  particular 
act  of  the  person,  or  which  speaks  of  property.^  Other 
jurists  of  distinguished  reputation  (among  whom  is 
Boullenois)  have  denied  this  to  be  a  sound  distinction ; 
and  have  specially  held  the  Senatm-consultum  Velleianwn 
to  be  a  personal  statute.* 

§  IG.  It  is  not  my  design  to  engage  in  the  contro- 
versy, as  to  what  constitutes  the  true  distinction  between 
personal  statutes  and  real  statutes,  or  to  examine  the 


1  Dig.  lib.  16,  tit.  1,1.  1;  Id.  1.  16,  ^  1. 

2  Le  Brun,  Traiie  de  la  Comraunaute,  Liv,  2,  ch.  3,  ^  5,  n.  20  to  48, 
p.  310  to  319. 

3  Ibid. 

4  1  Boullenois,  Princ.  Gen.  5  ;  Id.  Obser.  3,  p.  40  ;  Id.  Obser.  4,  p.  43, 
49 ;  Id.  Obser.  5,  p.  78,  79,  82,  101,  103,  105,  106,  118  ;  Henry  on  Foreign 
Law,  31,  50. 

CONFL.  3 


26  CONFLICT    OF   LAWS.  [CH.    L 

merits  of  the  various  systems  propounded  by  foreign 
jurists  on  this  subject.  It  would  carry  me  too  far  from 
the  immediate  3)urpose  of  these  commentaries,  even 
if  I  felt  myself  possessed  (which  I  certainly  do  not) 
of  that  critical  skill  and  learning,  which  such  an  ex- 
amination would  require,  in  order  to  treat  the  subject 
with  suitable  dignity.  My  object  is  rather  to  present 
the  leading  principles  upon  some  of  the  more  im- 
portant topics  of  private  international  jurisprudence, 
and  to  use  the  works  of  the  civilians,  to  illustrate, 
confirm,  and  expand  the  doctrines  of  the  common 
law,  so  far  at  least,  as  the  latter  have  assumed  a 
settled  form.  If,  in  referring  to  the  authority  of  the 
civilians,  I  should  speak  of  the  personality  of  laws, 
[l^ersonalite  des  statuts,)  and  the  reality  of  laws,  (realite 
des  statuts,)  let  it  not  be  attributed  to  a  spirit  of  innova- 
tion upon  the  received  usages  of  our  language ;  but 
rather  to  a  desire  to  familiarize  expressions,  which  in 
this  peculiar  sense  have  already  found  their  way  into 
or  juridical  discussions,  and  are  becoming  daily  more 
and  more  important  to  be  understood  by  American 
lawyers,  since  they  are  incorporated  into  the  ver}^  sub- 
stance of  the  jurisprudence  of  some  of  the  States  in  the 
Union.^  By  the  personality  of  laws  foreign  jurists 
generally  mean  all  laws,  which  concern  the  condition, 
state,  and  capacity  of  persons ;  by  the  reality  of  laws, 
all  laws,  which  concern  property  or  things ;  qiiw  ad  rem 
spedantr     Whenever  they  wish  to  express,  that  the 


1  See  note  to  2  Kent,  Comm.  Lect.  39,  p.  456,  3d  edit, 

2  1  Boullenois,  Observ.  3,  p.  41,  42.  — Mr.  Livermore,  in  his  Disserta- 
tions, used  llie  words,  ■personality  and  reality;  Mr.  Henry,  in  his  work,  the 
words  personalty  and  really.  I  have  preferred  the  former,  as  least  likely 
to  lead  to  mistakes,  as  "  personalty  "  is  in  our  law  confined  to  personal 
estate,  and  '*  realty  "  to  real  estate. 


CH.  I.]  INTRODUCTORY   REMARKS.  27 

operation  of  a  law  is  universal,  they  compendiously 
announce,  that  it  is  a  personal  statute ;  and  whenever, 
on  the  other  hand,  they  wish  to  express,  that  its  opera- 
tion is  confined  to  the  country  of  its  origin,  they  simply 
declare  it  to  be  a  real  statute. 


28  CONFLICT    OF    LAWS.  [CH.    IL 


CHAPTEH  II. 

GENERAL   MAXIMS    OF    INTERNATIONAL    JURISPRUDENCE. 

§  17.  Before  entering  upon  any  examination  of  the 
various  heads,  which  a  treatise  upon  the  Conflict  of  Laws 
will  naturally  embrace,  it  seems  necessary  to  advert  to 
a  few  general  maxims  or  axioms,  which  constitute  the 
basis,  upon  which  all  reasonings  on  the  subject  must 
necessarily  rest ;  and  without  the  express  or  tacit  ad- 
mission of  which,  it  will  be  found  impossible  to  arrive 
at  any  principles,  to  govern  the  conduct  of  nations,  or 
to  regulate  the  due  administration  of  justice. 

§  18.  I.  The  first  and  most  general  maxim  or  propo- 
sition is  that,  which  has  been  already  adverted  to,  that 
every  nation  possesses  an  exclusive  sovereignty  and 
jurisdiction  within  its  own  territory.  The  direct  con- 
sequence of  this  rule  is,  that  the  laws  of  every  state 
affect,  and  bind  directly  all  property,  whether  real  or 
personal,  within  its  territory ;  and  all  persons,  who  are 
resident  within  it,  whether  natural  born  subjects,  or 
aliens ;  and  also  all  contracts  made  and  acts  done  within 
it.^  A  state  may,  therefore,  regulate  the  manner  and 
circumstances,  under  which  property,  whether  real,  or 
personal,  or  in  action,  within  it,  shall  be  held,  transmit- 
ted, bequeathed,  transferred,  or  enforced ;  the  condition, 
capacity,  and  state,  of  all  persons  within  it  -,  the  validity 


1  Henry  on  Foreign  Law,  P.  1,  ch.  1,  ^  1,  p.  1  ;  Huberus,  Lib.  1,  tit.  3, 
§  2  ;  Hall  v.  Campbell,  Cowp.  R.  208  ;  Ruding  v.  Smith,  2  Hagg.  Consist. 
R.  383. 


CII.  II.]  GENERAL   MAXIMS.  29 

of  contracts,  and  other  acts,  done  within  it ;  the  resulting 
rights  and  duties  growing  out  of  these  contracts  and 
acts;  and  the  remedies,  and  modes  of  administering 
justice  in  all  cases  calling  for  the  interposition  of  its 
tribunals  to  protect,  and  vindicate,  and  secure  the  whole- 
some agency  of  its  own  laws  within  its  own  domains. 

§  19-  Accordingly,  Boullenois  has  laid  down  the  fol- 
lowing among  his  general  principles,  [Principcs  gene- 
raiix.)  He  says,  (1.)  He,  or  those,  who  have  the  sove- 
reign authority,  have  the  sole  right  to  make  laws ;  and 
these  laws  ought  to  be  executed  in  all  places  within 
the  sovereignty,  where  they  are  known,  in  the  pre- 
scribed manner.  (2.)  The  sovereign  has  power  and 
authority  over  his  subjects,  and  over  the  property, 
which  they  possess  within  his  dominions.  (3.)  The 
sovereign  has  also  authority  to  regulate  the  forms  and 
solemnities  of  contracts  which  his  subjects  make  within 
the  territories  under  his  dominions;  and  to  prescribe 
the  rules  for  the  administration  of  justice.  (4.)  The 
sovereign  has  also  a  right  to  make  laws,  to  govern 
foreigners  in  many  cases ;  for  example,  in  relation  to 
property,  which  they  possess  within  the  reach  of  his 
sovereignty ;  in  relation  to  the  formalities  of  contracts, 
which  they  make  within  his  territories ;  and  in  relation 
to  judiciary  proceedings,  if  they  institute  suits  before 
his  tribunals.  (5.)  The  sovereign  may  in  like  manner 
make  laws  for  foreigners,  who  even  pass  through  his 
territories ;  but  these  are  commonly  simple  laws  of 
police,  made  for  the  preservation  of  order  within  his 
dominions;  and  these  laws  are  either  permanent,  or 
they  are  made  only  for  certain  particular  occurrences.' 


1  I  Boullenois,  Traite  des  Statuts,  p.  2,  3,  4. 
3  * 


30  CONFLICT    OF   LAWS.  [CH.  11. 

The  same  doctrine  is,  either  tacitly  or  expressly,  con- 
ceded by  every  other  jurist,  who  has  discussed  the 
subject  at  large,  whether  he  has  written  upon  municipal 
law,  or  upon  public  law.^ 

§  20.  11.  Another  maxim,  or  proposition,  is,  that  no 
state  or  nation  can,  by  its  laws,  directly  affect,  or  bind 
property  out  of  its  own  territory,  or  bind  persons  not 
resident  therein,  whether  they  are  natural  born  subjects 
or  others.  This  is  a  natural  consequence  of  the  first 
proposition ;  for  it  would  be  wholly  incompatible  with 
the  equality  and  exclusiveness  of  the  sovereignty  of  all 
nations,  that  any  one  nation  should  be  at  liberty  to 
regulate  either  persons  or  things  not  within  its  own 
territory.  It  would  be  equivalent  to  a  declaration,  that 
the  sovereignty  over  a  territory  was  never  exclusive  in 
any  nation,  but  only  concurrent  with  that  of  all  nations ; 
that  each  could  legislate  for  all,  and  none  for  itself; 
and  that  all  might  establish  rules,  which  none  were 
bound  to  obey.  The  absurd  results  of  such  a  state  of 
things  need  not  be  dwelt  upon.  Accordingly  Roden- 
burg  has  significantly  said,  that  no  sovereign  has  a 
right  to  give  the  law  beyond  his  own  dominions  ;  and 
if  he  attempts  it,  he  may  be  lawfully  refused  obedience ; 
for  wherever  the  foundation  of  laws  fails,  there  their 
force  and  jurisdiction  fail  also.  Constat  igitiir  extra 
territoriiim  legem  dicer e  licere  nemini,  idqiie  si  feccrit  qiiis, 
impiine  ei  non  pareri ;  quippe  iibi  cesset  stcdntorwn  funda- 
mentmn,  roiur,  et  Jitrisdiciio.^  P.  Voet  speaks  to  the 
same  efiect:  Nidlimi  statutum  sive  in  rem,  sive  in  perso- 
nam, si  de  raiione  juris  civilis  scrmo  institiiatur,  sese  exten- 


1  Vattel,  B.  2,  ch.  7,  ^  84,  85. 

2  Rodenburg,  de  Stat.  ch.  3,  ^  1,  p.  7. 


CH.  II.]  GENERAL   MAXDIS.  31 

dit  ultra  statiieiitis  territomim}  BouUenois  (as  we  have 
seen)  annoimces  the  same  rule :  De  droU  Stroit,  toides 
les  loix,  que  fait  un  souverain,  ifont  force  et  autorite  que 
dans  r  etcndue  de  sa  domination  ;  ^  and,  indeed,  it  is  the 
common  hinguage  of  jurists.^  Mr.  Chief  Justice  Parker 
has  recognized  the  doctrine  in  the  fullest  manner. 
"That  the  laws  "  (says  he)  "  of  any  state  cannot  by  any 
inherent  authority  be  entitled  to  respect  extra-territo- 
rially,  or  beyond  the  jurisdiction  of  the  state,  which 
enacts  them,  is  the  necessary  result  of  the  independence 
of  distinct  sovereignties."  "* 

§  21.  Upon  this  rule  there  is  often  ingrafted  an 
exception,  of  some  importance  to  be  rightly  understood. 
It  is,  that  although  the  laws  of  a  nation  have  no  direct, 
binding  force,  or  effect,  except  upon  persons  within  its 
own  territories ;  yet  that  every  nation  has  a  right  to 
bind  its  own  subjects  by  its  own  laws  in  every  other 
place.^  In  one  sense,  this  exception  may  be  admitted 
to  be  correct,  and  well  founded  in  the  practice  of  na- 
tions ;  in  another  sense  it  is  incorrect,  or,  at  least,  it 
requires  qualification.  Every  nation  has  hitherto 
assumed  it  as  clear,  that  it  possesses  the  right  to  regu- 
late and  govern  its  own  native  born  subjects  every- 
where ;  and  consequently,  that  its  laws  extend  to,  and 
bind  such  subjects  at  all  times,  and  in  all  places.  This 
is  commonly  adduced  as  a  consequence  of  what  is  called 


*  Voet,  de  Stat.  ^  4,  ch.  2,  n.  7,  p.  124  ;  Id.  138,  139,  edit.  1661. 

2  1  BouUenois,  des  Statut.  Princip.  Gen.  6,  p.  4  ;  Id.  ch.  3,  Observ. 
10,  p.  152. 

•'  Idem. 

1  Blanchard  v.  Russell,  13  Mass.  R.  4.  —  The  same  doctrine  is  reasoned 
out  with  great  ability  in  the  opinion  of  Mr.  Chief  Justice  Taney  in  the 
case  of  the  Bank  of  Augusta  v.  Earle,  13  Peters,  R.  584  to  591. 

5  Henry  on  Real  and  Personal  Statutes,  P.  1,  ch.  1,  p.  1. 


32  CONFLICT    OF   LAWS.  [CH.  IT. 

natural  allegiance,  that  is,  of  allegiance  to  the  govern- 
ment of  the  territory  of  a  man's  birth.  Thus,  Mr.  Jus- 
tice Blackstone  says ;  "  Natural  allegiance  is  such  as  is 
due  from  all  men,  born  within  the  king's  dominions, 
immediately  upon  their  birth."  "Natural  allegiance 
is,  therefore,  a  debt  of  gratitude,  which  cannot  be  for- 
feited, cancelled,  or  altered,  by  any  change  of  time, 
place  or  circumstance.  An  Englishman,  who  removes 
to  France,  or  to  China,  owes  the  same  allegiance  to  the 
king  of  England  there  as  at  home,  and  twenty  years 
hence  as  well  as  now."  ^  And  he  proceeds  to  distinguish 
it  from  local  allegiance,  which  is  such  as  is  due  from 
an  alien,  or  stranger  born,  for  so  long  a  time  as  he  con- 
tinues within  the  dominions  of  a  foreign  prince.  The 
former  is  universal  and  perpetual ;  the  latter  ceases  the 
instant  the  stranger  transfers  himself  to  another  coun- 
try ;  ^  and  it  is,  therefore,  local  and  temporary.  Vattel, 
on  the  other  hand,  seems  to  admit  the  right  of  alle- 
giance not  to  be  perpetual  even  in  natives ;  and  that 
they  have  a  right  to  expatriate  themselves,  and,  under 
some  circumstances,  to  dissolve  their  connection  with 
the  parent  country.^ 

§  22.  Without  entering  upon  this  subject,  (which 
properly  belongs  to  a  general  treatise  upon  public  law,) 
it  may  be  truly  said,  that  no  nation  is  bound  to  respect 
the  laws  of  another  nation,  made  in  regard  to  the  sub- 
jects of  the  latter,  who  are  non-residents.  The  obliga- 
tory force  of  such  laws  of  any  nation  cannot  extend 
beyond  its  own  territories.  And  if  such  laws  are  in- 
compatible with  the  laws  of  the  country,  where  such 


1  1  Black.  Coram.  369,  370  ;  Foster,  C.  L.  184. 

2  Ibid. 

3  Vatlel,  B.  1,  ch.  19,  ^  220  to  228. 


CH.  II.]  GENERAL   MAXIMS.  33 

subjects  reside,  or  interfere  with  the  duties  which  they 
owe  to  the  country  where  they  reside,  they  will  be 
disregarded  by  the  latter.  Whatever  may  be  the 
intrinsic  or  obligatory  force  of  such  laws  upon  such 
persons,  if  they  should  return  to  their  native  country, 
they  can  have  none  in  other  nations  wherein  they 
reside.  Such  laws  may  give  rise  to  personal  relations 
between  the  sovereign  and  subjects,  to  be  enforced  in 
his  own  domains ;  but  they  do  not  rightfully  extend  to 
other  nations.  Statuta  suo  claudiintur  territorio,  ncc 
ultra  territormn  disponunt.  Nor,  indeed,  is  there,  strictly 
speaking,  any  difference  in  this  respect,  whether  such 
laws  concern  the  persons,  or  concern  the  property  of 
native  subjects.  A  state  has  just  as  much  intrinsic 
right,  and  no  more,  to  give  to  its  own  laws  an  extra- 
territorial force  as  to  the  property  of  its  subjects  situ- 
ated abroad,  as  it  has  in  relation  to  the  persons  of  its 
subjects  domiciled  abroad.  That  is,  as  sovereign  laws, 
they  have  no  obligation  on  either  the  person  or  the 
property.  When,  therefore,  we  speak  of  the  right  of  a 
state  to  bind  its  own  native  subjects  everywhere,  we 
speak  only  of  its  own  claim  and  exercise  of  sovereignty 
over  them  when  they  return  within  its  own  territorial 
jurisdiction,  and  not  of  its  right  to  compel  or  require 
obedience  to  such  laws  on  the  part  of  other  nations 
within  their  own  territorial  sovereignty.  On  the  con- 
trary, every  nation  has  an  exclusive  right  to  regulate 
persons  and  things  within  its  own  territory  according 
to  its  own  sovereign  will  and  public  policy. 

§  23.  III.  From  these  two  maxims  or  propositions, 
there  flows  a  third,  and  that  is,  that  whatever  force  and 
obligation  the  laws  of  one  country  have  in  another, 
depend  solely  upon  the  laws  and  municipal  regulations 
of  the  latter,  that  is  to  say,  upon  its  own  proper  juris- 


84  CONFLICT    OF   LAWS.  [CH.  IL 

prudence  and  polity,  and  upon  its  own  express  or  tacit 
consent.^  A  state  may  prohibit  the  operation  of  all 
foreign  laws,  and  the  rights  growing  out  of  them, 
within  its  own  territories.  It  may  prohibit  some  foreign 
laws,  and  it  may  admit  the  operation  of  others.  It  may 
recognize,  and  modify,  and  qualify  some  foreign  laws ; 
it  may  enlarge,  or  give  universal  effect  to  others.  It 
may  interdict  the  administration  of  some  foreign  laws ; 
it  may  favor  the  introduction  of  others.  When  its  own 
code  speaks  positively  on  the  subject,  it  must  be 
obeyed  by  all  persons  who  are  within  the  reach  of  its 
sovereignty.  When  its  customary,  unwritten,  or  com- 
mon law  speaks  directly  on  the  subject,  it  is  equally  to 
be  obeyed ;  for  it  has  an  equal  obligation  with  its  posi- 
tive code.  When  both  are  silent,  then,  and  then  only, 
can  the  question  properly  arise,  what  law  is  to  govern 
in  the  absence  of  any  clear  declaration  of  the  sovereign 
will.  Is  the  rule  to  be  promulgated  by  a  legislative 
act  of  the  sovereign  power  ?  Or  is  to  be  promulgated 
by  courts  of  law,  according  to  the  analogies  which  are 
furnished  in  the  municipal  jurisprudence  ?  This  ques- 
tion does  not  admit  of  any  universal  answer  ;  or  rather, 
it  will  be  answered  diiferently  in  different  communities, 
according  to  the  organization  of  the  departments  of  each 
particular  government.^ 

§  24.  Upon  the  continent  of  Europe  some  of  the 
principal  states  have  silently  suffered  their  courts  to 
draw  this  portion  of  their  jurisprudence  from  the  ana- 
logies furnished  by  the  civil  law,  or  by  their  own  cus- 
tomary or  positive  code.  France,  for  instance,  com- 
posed, as  it  formerly  was,  of  a  great  number  of  pro- 


1  Huberus,  Lib.  1,  lit.  3,  §  2.  2  See  Post,  ^  38. 


CH.  II.]  GENERAL   MAXIMS.  35 

viuces,  governed  by  different  laws  and  customs,  was 
early  obliged  to  sanction  such  exertions  of  authority 
by  its  courts,  in  order  to  provide  for  the  constantly 
occurring  claims  of  its  own  subjects,  living  and  owning 
property  in  different  provinces,  in  a  conflict  between 
the  different  provincial  laws.  In  England  and  America 
the  courts  of  justice  have  hitherto  exercised  the  same 
authority  in  the  most  ample  manner  ;  and  the  legisla- 
tures have  in  no  instance  (it  is  believed)  in  either 
country  interfered  to  provide  any  positive  regulations. 
The  common  law  of  both  countries  has  been  expanded- 
to  meet  the  exigencies  of  the  times,  as  ^they  have 
arisen;  and  so  far  as  the  practice  of  nations,  or  the  jus 
gentium  imvcdmn,  has  been  supposed  to  furnish  any 
general  principle,  it  has  been  followed  out  with  a  wise 
and  manly  liberality. 

§  25.  The  real  difficulty  is  to  ascertain,  what  princi- 
ples in  point  of  public  convenience  ought  to  regulate 
the  conduct  of  nations  on  this  subject  in  regard  to  each 
other,  and  in  what  manner  they  can  be  best  applied  to 
the  infinite  variety  of  cases,  arising  from  the  compli- 
cated concerns  of  human  society  in  modern  times.  No 
nation  can  be  justly  required  to  yield  up  its  own  funda- 
mental policy  and  institutions,  in  favor  of  those  of 
another  nation.  Much  less  can  any  nation  be  required 
to  sacrifice  its  own  interests  in  favor  of  another ;  or  to 
enforce  doctrines,  which,  in  a  moral  or  political  view, 
are  incompatible  with  its  own  safety,  or  happiness,  or 
conscientious  regard  to  justice  and  duty.  In  the  end- 
less diversities  of  human  jurisprudence  many  laws 
must  exist  in  one  country,  which  are  the  result  of  local 
or  accidental  circumstances,  and  are  wholly  unfit  to  be 
ingrafted  upon  the  institutions  and  habits  of  another. 
Many   laws,  well  enough   adapted   to  the  notions  of 


36  CONFLICT   OF   LAWS.  [CH.  IL 

heathen  nations,  would  be  totally  repugnant  to  the 
feelings,  as  well  as  to  the  justice  of  those  which  em- 
brace Christianity.  A  heathen  nation  might  justify 
polygamy,  or  incest,  contracts  of  moral  turpitude,  or 
exercises  of  despotic  cruelty  over  persons,  which  would 
be  repugnant  to  the  first  principles  of  Christian  duty. 
The  laws  of  one  nation  may  be  founded  upon  a  narrow 
selfishness,  exclusively  adapted  to  promote  its  own 
peculiar  policy,  or  the  personal  or  proprietary  interests 
of  its  own  subjects,  to  the  injury  or  even  the  ruin  of 
those  of  the  subjects  of  all  other  countries.  A  particu- 
lar nation  may  refuse  all  reciprocity  of  commerce, 
rights,  and*  remedies  to  others.  It  may  assume  a  supe- 
riority of  powers  and  prerogatives,  for  the  very  pur- 
pose of  crushing  those  of  its  neighbors,  who  are  less 
fortunate  or  less  powerful.  In  these,  and  in  many 
other  cases,  which  may  easily  be  put,  without  any 
extravagance  of  supposition,  there  would  be  extreme 
difficulty  in  saying,  that  other  nations  were  bound  to 
enforce  laws,  institutions,  or  customis,  of  that  nation, 
which  were  subversive  of  their  own  morals,  justice,  or 
polity.  Who,  for  instance,  (not  to  multiply  cases,) 
who  would  contend,  that  any  nation  in  Christendom 
ought  to  carry  into  effect,  to  its  utmost  range,  the 
paternal  power  of  the  ancient  Homans  in  their  early 
jurisprudence,  extending  to  power  over  the  life  and 
death  of  their  children  ?  ^  Or,  who  would  now  contend 
for  that  terrible  power  (if  it  ever  really  existed)  under 
the  law  of  the  Twelve  Tables,  which  enabled  creditors 


1  Laws  of  the  Twelve  Tables,  Table  4,  ch.  1 ;  1  Pothier,  Pandects, 
and  Id.  ^  1,  2,  (8vo.  edit.  Paris,  1818,  p.  386,  387)  ;  1  Black.  Comm.  452  ; 
Fergusson  on  Marriage  and  Divorce,  411 ;  Grotius,  B.  2,  ch.  5,  ^  7. 


CH.  II.]  GENERAL   MAXIMS.  37 

to  cut  their  debtor's  body  into  pieces,  and  divide  it 
among  them  ?  ^ 

§  26.  The  jurists  of  continental  Europe  have  with 
uncommon  skill  and  acuteness  endeavored  to  collect 
principles,  which  ought  to  regulate  this  subject  among 
all  nations.  But  it  is  very  questionable,  whether  their 
success  has  been  at  all  proportionate  to  their  labor  ; 
and  whether  their  principles,  if  universally  adopted, 
would  be  found  either  convenient,  or  desirable,  or 
even  just,  under  all  circumstances.  Their  systems, 
indeed,  have  had  mainly  in  view  the  juridical  polity, 
fit  for  the  different  provinces  and  states  of  a  common 
empire,  although  they  are  by  no  means  limited  to  such 
cases.  It  is  easy  to  see,  that,  in  a  nation,  like  France 
before  the  revolution,  governed  by  different  laws  in  its 
various  provinces,  some  uniform  rules  might  be  adopted, 
which  would  not  be  equally  fit  for  the  adoption  of  inde- 
pendent nations,  possessing  no  such  common  interests, 
or  such  a  common  basis  of  jurisprudence.  The  leading 
positions  maintained  by  many  of  the  French  jurists  are, 
that  the  laws  of  a  country,  which  concern  persons,  who 
reside  within,  and  are  subject  to  the  territorial  jurisdic- 
tion, ought  to  be  deemed  of  universal  obligation  in*  all 
other  countries ;  that  the  laws,  which  concern  the  pro- 
perty of  such  persons,  ought  to  be  deemed  purely  local, 
and  the  laws  of  a  mixed  character,  concerning  such  per- 
sons and  property,  ought  to  be  deemed  local,  or  univer- 
sal, according  to  their  predominant  character.  Thus, 
Boullenois  lays  down  these  rules  in  pointed. terms  :  Les 
loix  piires  2^crsonellcs,  soit  personclles  universellcs,  soit  per- 
soncUes  particulwres,  se  portent  partout;  c'cst  a  dire,  que 


1  Table  3,  ch.  4  ;  1  Pothier,  Pandects,  and  Id.  Coram.  §  2,  (8vo.  edit. 
Paris,  1818,  p.  373,  380,  381)  ;  2  Black.  Coram.  472,  473. 

CONFL.  4 


38  CONFLICT    OF    LAWS.  [CH.  II. 

Vhomme  est  paHoiit  de  Vetat,  salt  universel,  soit  'paiiiculier, 
doiTt  sa  persomie  est  affectee,par  la  hi  de  son  domicil.  Les 
loix  reelles  n'ont  jjoint  d' extension  directe,  ni  indirecte,  hors  la 
jmisdiction  et  la  domination  du  legislateur.  Le  siijet  et  le 
mateiiel  dominant  direct  et  immediat  du  statut  en  determine 
la  nature  et  qualite  ;  c'est  a  dire,  que  le  sujet  et  le  materiel 
-  lefont  Ure  reel,  on  'personnel} 

S  27.  Independent  of  the  almost  insurmountable  diffi- 
cultieSj  in  which  the  continental  jurists  admit  them- 
selves to  be  involved,  in  the  attempt  to  settle  the  true 
character  of  these  mixed  cases  of  international  jurispru- 
dence, and  about  which  they  have  been  engaged  in  end- 
less controversies  with  each  other,  there  are  certain 
exceptions  to  these  rules,  generally  admitted,  which 
shake  the  very  foundation,  on  which  they  rest,  and  ad- 
monish us,  that  it  is  far  easier  to  give  simplicity  to 
systems,  than  to  reconcile  them  with  the  true  duties  and 
interests  of  all  nations  in  all  cases.  Take,  for  example, 
two  neighboring  states,  one  of  which  admits,  and  the 
other  of  which  prohibits  the  existence  of  slavery,  and 
the  rights  of  property  growing  out  of  it ;  what  help 
would  it  be  to  either,  in  ascertaining  its  own  duties  and 
interests  in  regard  to  the  other,  to  say,  that  their  laws, 
so  far  as  they  regard  the  persons  of  the  slaves,  were  of 
universal  obligation ;  and,  so  far  as  they  regard  the  pro- 
perty in  slaves,  they  were  real,  and  of  no  obligation 
beyond  the  territory  of  the  lawgiver  ?  ^ 

§  28.  There  is,  indeed,  great  truth  in  the  remarks, 
which  have  been  judicially  promulgated  on  this  subject 
by  a  learned  court.  "  When  so  many  men  of  great  ta- 
lents and  learning  are  thus  found  to  fail  in  fixing  certain 


1  1  BouUenois,  Traits  des  Statutes,  Prin.  G6n.  18,  23,  27,  p.  6,  7. 

2  See  Somerset's  case,  and  Hargrave's  note  to  Co.  Lit.  79,  J,  note  44. 


CHAP.  Il]  general  MAXIMS.  39 

principles,  we  are  forced  to  conclude,  that  they  have 
failed,  not  from  want  of  ability,  but  because  the  matter 
was  not  susceptible  of  being  settled  on  certain  princi- 
ples. They  have  attempted  to  go  too  far,  to  define  and 
fix  that,  which  cannot,  in  the  nature  of  things,  be  de- 
fined and  fixed.  They  seem  to  have  forgotten,  that  they 
wrote  on  a  question,  which  touched  the  comity  of  na- 
tions, and  that  that  comity  is,  and  ever  must  be,  uncertain. 
That  it  must  necessarily  depend  on  a  variety  of  circum- 
stances, which  cannot  be  reduced  to  any  certain  rule. 
That  no  nation  will  suffer  the  laws  of  another  to  inter- 
fere with  her  own  to  the  injury  of  her  citizens.  That, 
whether  they  do  or  not,  must  depend  on  the  condition 
of  the  country,  in  which  the  foreign  law  is  sought  to  be 
enforced ;  the  particular  nature  of  her  legislation,  her 
policy,  and  the  character  of  her  institutions.  That  in 
the  conflict  of  laws,  it  must  often  be  a  matter  of  doubt, 
which  should  prevail ;  and  that  whenever  a  doubt  does 
exist,  the  court,  which  decides,  will  prefer  the  laws  of 
its  own  country  to  that  of  the  stranger."  ^ 

§  29.  Huberus  has  laid  down  three  axioms,  which  he 
deems  sufficient  to  solve  all  the  intricacies  of  the  sub- 
ject. The  first  is,  that  the  laws  of  every  empire  have 
force  only  within  the  limits  of  its  own  government,  and 
bind  all,  who  are  subjects  thereof;  but  not  beyond  those 
limits.^  The  second  is,  that  all  persons,  who  are  found 
within  the  limits  of  a  government,  whether  their  resi- 
dence is  permanent  or  temporary,  are  to  be  deemed  sub- 
jects thereof.^     The   third  is,  that  the  rulers  of  every 


1  Mr.  Justice  Porter,  in  delivering  the  opinion  of  the  Court  in  the  case 
of  Saul  V.  His  Creditors,  17  Martin,  R,  569,  595,  596. 

2  Huberus,  Lib.  1,  tit.  3,  de  Conflictu  Legum,  §  2,  p.  538. 

3  Ibid. 


40  CONFLICT    OF   LAWS.  [CH.  IL 

empire  from  comity  admit,  that  the  laws  of  every  peo- 
ple, in  force  within  its  own  limits,  ought  to  have  the 
same  force  everywhere,  so  far  as  they  do  not  prejudice 
the  powers  or  rights  of  other  governments,  or  of  their 
citizens/  "  From  this,"  he  adds,  "  it  appears,  that  this 
matter  is  to  he  determined,  not  simply  by  the  civil  laws, 
but  by  the  convenience  and  tacit  consent  of  different 
people ;  for  since  the  laws  of  one  people  cannot  have 
any  direct  force  among  another  people,  so  nothing  could 
be  more  inconvenient  in  the  commerce  and  general  in- 
tercourse of  nations,  than  that  what  is  valid  by  the 
laws  of  one  place  should  become  without  effect  by  the 
diversity  of  laws  of  another ;  and  that  this  is  the  true 
reason  of  the  last  axiom,  of  which  no  one  hitherto  seems 
to  have  entertained  any  doubt."  ^ 

§  30.  Hertius  seems  to  have  been  dissatisfied  with 
these  rules ;  and  especially  with  the  last ;  and  he  doubts 
exceedingly,  whether  this  comity  of  nations,  founded 
upon  the  notion  of  mutual  convenience  and  utility,  can 
furnish  any  sufficiently  solid  basis  of  a  system.  Ob  re- 
cvprocam  enim  utilitatem,  in  disciplinam  juris  gentium  abiise, 
lit  civitas  alteriiis  civitatis  leges  apiid  se  valere  patiatury  ade- 
oqiie  exemplmn  hoc,  ut  evidentissimi  argiimenti  ad  proban- 
dum,  quod  jus  gentium  reverd  a  jure  naturae  distinctum  sit, 
vuU  observari.     Verum  enim  nos  valde  dubitamus,  man  res 


1  Huberus,  Lib.  1,  lit.  3,  de  Conflictu  Legum,  §  2,  p.  538, 

2  Ibid.  — These  axioms  of  Huberus  are  so  often  cited,  that  it  may  be 
well  to  give  them  in  his  own  words.  "  (1)  Leges  cujusque  imperii  vim 
habent  intra  terminos  ejusdem  reipublicse,  omnesque  ei  subjectos  obligant, 
nee  ultra.  (2)  Pro  subjectis  imperio  habendi  sunt  omnes,  qui  intra  termi- 
nos ejusdem  reperiuntur,  sive  in  perpetuum,  sive  ad  tempus  ibi  commo- 
rentur.  (3)  Rectores  imperiorum  id  comitur  agunt,  ut  jura  cujusque 
populi  intra  terminos  ejus  exercita  teneant  ubique  suam  vim,  quatenus 
nihil  potestati  aut  juri  alterius  imperantis  ejusque  civium  praejudicetur." 
2  Hub.  Lib.  1,  tit.  3  ;  De  Conflictu  Legum,  ^  2. 


CH.  II.]  GENERAL   MAXIMS.  41 

hcec  ex  jure  gentiimiy  sive  midiid  earim  indiilgentid,  possit 
definiri,  preseHim  cum  in  und  eddemque  civitate  coUisio  see- 
pissime  fiat.  Norunt  ctiam  periti  ex  solis  excmpUs  jus  gen- 
tium adstnicre,  quam  sit  fallax  ;  turn  si  sold  populorimi  conni- 
vcntid  id  niti  dicamus,  quce  juris  erit  efficacia  ?  ^  He  adds ,  that 
he  is  disposed  to  search  deeper  into  the  matter  ;  Nobis 
paullo  altius  Met  repetere  ;  ^  and  he  proceeds  to  enunciate 
his  own  views  under  the  known  distinctions  of  personal 
statutes  and  real  statutes,  and  then  lays  down  the  fol- 
lowing rules.  (l.)"When  a  law  is  directed,  or  has 
regard,  to  the  person,  we  are  to  look  to  (be  governed 
by)  the  laws  of  the  country,  to  which  he  is  personally 
subject."  Quando  lex  in  personam  dirigitur,  resjjiciendum 
est  ad  leges  ilUus  civitatis,  quce  perso7iam  hahet  suljecta7n? 
(2.)  "If  a  law  bears  directly  upon  things,  it  is  local,  in 
whatever  place  and  by  whomsoever  the  act  is  done." 
Si  lex  dirccto  rei  imponitur,  ea  locum  hahet,  ubicunque  etiam 
locorum  ct  a_  quocunque  actus  celehretur.'^  (3.)  "  If  a  law 
gives  the  form  (prescribes  the  form)  to  the  act,  then  the 
place  of  the  act,  and  not  of  the  domicil  of  the  party,  or 
of  the  situation  of  the  thing,  is  to  be  regarded."  Si  lex 
actui  formam  dat,  inspiciendus  est  locus  actus,  non  domicilii, 
nan  rei  sUce.^  Now,  after  the  admission  of  Hertius  him- 
self, that  the  usage  of  nations  must  furnish  a  very  fal- 
lacious guide  on  such  a  subject,  it  is  not  a  little  diffi- 
cult to  perceive,  what  superior  authority  or  value  his 


1  Herlii  Opera,  De  Collis.  Leg.  §  4,  n.  3,  4,  p.  120  ;  Id.  p.  170,  171, 
edit.  1716. 

2  Ibid. 

3  1  Hertii  Opera,  De  Collis.  ^  4,  art.  8,  p.  123 ;  Id.  p.  175,  edit.  1716  ; 
post,  ^  238. 

4  Id.  ^  4,  ait.  9,  p.  123  ;  Id.  p.  177,  edit.  1716  ;  post,  ^  238. 

y  1  Hertii  Opera,  De  Collis.  Leg.  ^  4,  art.  10,  p.  126  ;  Id.  p.  179,  edit. 
1716  ;  post,  ^  238 

4* 


42  CONFLICT    OF   LAWS.  [CH.  IL 

own  rules  have  over  those  of  Huberus.  The  latter  has 
at  least  this  satisfactory  foundation  for  his  most  import- 
ant rule,  that  he  is  mainly  guided  in  it  by  the  practice 
of  nations  ;  and  he  thus  aimed,  as  Grotius  had  doue  be- 
fore him,  to  avail  himself  of  the  practice  of  nations,  as  a 
solid  proof  of  the  acknowledged  law  of  nations.^ 

§  31.  Some  attempts  have  been  made,  but  without 
success,  to  undervalue  the  authority  of  Huberus.  It  is 
certainly  true,  that  he  is  not  often  spoken  of,  except  by 
jurists  belonging  to  the  Dutch  School.  Boullenois, 
however,  has  quoted  his  third  and  last  axiom  with  ma- 
nifest approbation.^  But  it  will  require  very  little  aid 
of  authority  to  countenance  his  works,  if  his  maxims 
are  well  founded ;  and  if  they  are  not,  no  approbation 
founded  on  foreign  recognitions  of  them,  can  disguise 
their  defects.  It  is  not,  however,  a  slight  recommenda- 
tion of  his  works,  that  hitherto  he  has  possessed  an  un- 
disputed preference  on  this  subject  over  other  conti- 
nental jurists,  as  well  in  England  as  in  America.  In- 
deed, his  two  first  maxims  will  in  the  present  day 
scarcely  be  disputed  by  any  one ;  and  the  last  seems 
irresistibly  to  flow  from  the  right  and  duty  of  every 
nation  to  protect  its  own  subjects  against  injuries,  re- 
sulting from  the  unjust  and  prejudicial  influence  of  fo- 
reign laws  ;  and  to  refuse  its  aid  to  carry  into  effect  any 
foreign  laws,  which  are  repugnant  to  its  own  interests 
and  polity. 

§  32.  It  is  difiicult  to  conceive,  upon  what  ground  a 
claim  can  be  rested,  to  give  to  any  municipal  laws  an 


1  The  Scottish  courts  seem  constantly  to  have  held  the  doctrine  of  Hu- 
berus in  his  third  axiom  to  be  entirely  correct.  See  Fergusson  on  Marr. 
and  Div.  395,  396,  410. 

2  1  IJoullenois,  Trait6  des  Statuts,  ch.  3,  Obser,  10,  p.  155. 


CH.  II.]  GENERAL   MAXIMS.  43 

extra-territorial  effect,  when  those  laws  are  prejudicial 
to  the  rights  of  other  nations,  or  to  those  of  their  sub- 
jects. It  would  at  once  annihilate  the  sovereignty  and 
equality  of  every  nation,  which  should  be  called  upon 
to  recognize  and  enforce  them ;  or  compel  it  to  desert 
its  own  proper  interest  and  duty  to  its  own  subjects  in 
favor  of  strangers,  who  were  regardless  of  both.  A  claim, 
so  naked  of  any  principle  or  just  authority  to  support 
it,  is  wholly  inadmissible. 

§  33.  It  has  been  thought  by  some  jurists,  that  the 
term,  "comity,"  is  not  sufficiently  expressive  of  the 
obligation  of  nations  to  give  effect  to  foreign  laws,  when 
they  are  not  prejudicial  to  their  own  rights  and  inter- 
ests. And  it  has  been  suggested,  that  the  doctrine 
rests  on  a  deeper  foundation  -,  that  it  is  not  so  much  a 
matter  of  comity,  or  courtesy,  as  a  matter  of  paramount 
moral  duty.^  Now,  assuming,  that  such  a  moral  duty 
does  exist,  it  is  clearly  one  of  imperfect  obligation,  like 
that  of  beneficence,  humanity,  and  charity.  Every 
nation  must  be  the  final  judge  for  itself,  not  only  of  the 
nature  and  extent  of  the  duty,  but  of  the  occasions,  on 
which  its  exercise  may  be  justly  demanded.  And,  cer- 
tainly, there  can  be  no  pretence  to  say,  that  any  foreign 
nation  has  a  right  to  require  the  full  recognition  and 
execution  of  its  own  laws  in  other  territories,  when 
those  laws  are  deemed  oppressive  or  injurious  to  the 
rights  or  interests  of  the  inhabitants  of  the  latter,  or 
when  their  moral  character  is  questionable,  or  their  pro- 
visions are  impolitic  or  unjust.^  Even  in  other  cases, 
it  is  difficult  to  perceive  a  clear  foundation  in  morals, 


1  Liverm.  Dissert,  p.  26  to  p.  30. 

2  See  Mr.  Justice  Porter,  in  the  case  of  Saul  v.  His  Creditors,  17  Mar- 
tin, R.  5G9,  596  to  599. 


44  CONFLICT    OF   LAWS.  [CH.  U. 

or  in  natural  law,  for  declaring,  that  any  nation  has  a 
right  (all  others  being  equal  in  sovereignty)  to  insist 
that  its  own  positive  laws  shall  be  of  superior  obliga- 
tion in  a  foreign  realm  to  the  domestic  laws  of  the  lat- 
ter, of  an  equally  positive  character.  What  intrinsic 
right  has  one  nation  to  declare,  that  no  contract  shall 
be  binding,  which  is  made  by  any  of  its  subjects  in  a 
foreign  country,  unless  they  are  twenty-five  years  of 
age,  any  more  than  another  nation,  where  the  contract 
is  made,  has  a  right  to  declare,  that  such  contract  shall 
be  binding,  if  made  by  any  person  of  twenty-one  years 
of  age  ?  One  should  suppose,  that  if  there  be  any  thing 
clearly  within  the  scope  of  national  sovereignty,  it  is 
the  right  to  fix,  what  shall  be  the  rule  to  govern  con- 
tracts made  within  its  own  territories.^ 

§  34.  That  a  nation  ought  not  to  make  its  own  juris- 
prudence an  instrument  of  injustice  to  other  nations,  or 
to  their  subjects,  may  be  admitted.  But  in  a  vast  vari- 
ety of  cases,  which  may  be  put,  the  rejection  of  the 
laws  of  a  foreign  nation  may  work  less  injustice,  than 
the  enforcement  of  them  will  remedy.  And,  here  again, 
every  nation  must  judge  for  itself,  w^hat  is  its  true  duty 
in  the  administration  of  justice  in  its  domestic  tribunals. 
It  is  not  to  be  taken  for  granted,  that  the  rule  of  the 
foreign  nation,  which  complains  of  a  grievance,  is  right, 
and  that  its  own  rule  is  wrong. 

§  35.  The  true  foundation,  on  which  the  administra- 
tion of  international  law  must  rest,  is,  that  the  rules 
which  are  to  govern  are  those  which  arise  from  mutual 
interest  and  utility,  from  a  sense  of  the  inconveniences 


1  See  post,  §  75  ;  and  Mr.  Justice  Porter's  opinion  in  Saul  v.  His  Cre- 
ditors, 17  Martin,  R.  569,  596,  597,  598. 


CH.  il]  general  maxims.  45 

which  would  result  from  a  contrary  doctrine,  and  from 
a  sort  of  moral  necessity  to  do  justice,  in  order  that 
justice  may  be  done  to  us  in  return.^  This  is  the 
ground  upon  which  Rodenburg  puts  it.  Quid,  igitur 
(says  he)  rei  in  causct  est,  quod  personalia  statida  territo- 
rium  egrediantiir  ?  Uniciim  Jioc  ipsa  rei  natura  ac  neces- 
siias  invexit,  id  cum  de  statu  et  conditione  hominwn  qiiceri- 
tiir,  iini  solummodo  jiidici,  et  qiddeni  domicilii,  universiim  in 
Hid  jus  sit  attrihidum ;  cum  enim  db  una  certoque  loco 
staium  hominis  legem  accipcre  necesse  est,  quod  ahsurdtim, 
eariimque  reriim  natiiraliter  inter  se  piigna  foret,  id  in  quot 
loca  qids  iter  faciens,  aid  navigans,  delatiis  fiierit,  toiidem 
Hie  statum  midaret  aiit  conditionctn  ;  id  mio  eodemque  tem- 
pore hie  sui  juris,  illic  alieni  fidurus  sit ;  uxor  simul  in 
potestate  viri,  et  extra  eandem  sit ;  alio  loco  Tiaheatur  quis 
prodigiis,  alio  frugi?  President  Bouhier  expounds  the 
ground  with  still  more  distinctness.  Mais  avant  toides 
clioses  il  faid  se  souvenir,  qiH encore  que  le  regie  etroite  soil 
pour  la  reseriction  des  coidumes  dans  lews  limites,  V exten- 
sion en  a  neamnoins  He  admise  en  faveur  de  Vidilite  puh- 
lique,  et  souvent  meme  par  une  espi^ce  de  necessite,  SfC. 
Ainsi,  quand  les  peu'ples  voisins  ont  souffert  cette  extension, 
ce  n^est  point  qu'ils  se  soient  vus  soumis  a  un  statid  Stranger. 
C'est  seulement,  parce  quHls  y  ont  trouve  leur  interU  particu- 
lier  en  ce,  qiCen  pareil  cas  leurs  coidumes  ont  le  mime  avant- 
age  dans  les  provinces  voisines.  On  pent  done  dire,  que 
cette  extension  est  sur  une  espece  de  droit  des  gens,  et 
de  Ueiiseance,  en  virtu  duquel  les  differens  peuples  sont 
tacitement  demeures  d''accord,  de  souffrir  cette  extension  de 
coutume  cl  coidume,  toides  les  fois  que  Vequite  et  Vutilite 


1  Liverm.  Dissert,  p.  28  ;  Blanchard  v.  Russell,  13  Mass.  R.  4. 

2  Rodenb.  de  Stat.  Diversit.  tit.  1,  c.  3,  §  4 ;  2  BouUenois,  App.  p.  8. 


46  CONFLICT   OF   LAWS.  [CH.  IL 

commune  le  demanderoient ;  a  moins  que  celle,  ou  V ex- 
tension seroit  demandee,  ne  contint  en  ce  cas  line  disposition 
prohibitive} 

§  36.  But  of  the  nature,  and  extent,  and  utility  of 
this  recognition  of  foreign  laws,  respecting  the  state 
and  condition  of  persons,  every  nation  must-  judge  for 
itself,  and  certainly  is  not  bound  to  recognize  them, 
when  they  would  be  prejudicial  to  its  own  interests. 
The  very  terms,  in  which  the  doctrine  is  commonly 
enunciated,  carry  along  with  them  this  necessary  quali- 
fication and  limitation  of  it.  Mutual  utility  presupposes, 
that  the  interest  of  all  nations  is  consulted,  and  not  that 
of  one  only.  Now,  this  demonstrates,  that  the  doctrine 
owes  its  origin  and  authority  to  the  voluntary  adoption 
and  consent  of  nations.  It  is,  therefore,  in  the  strictest 
sense,  a  matter  of  the  comity  of  nations,  and  not  of  any 
absolute  paramount  obligation,  superseding  all  discre- 
tion on  the  subject.^ 

§  37.  Vattel  has  with  great  propriety  said ;  "  That 
it  belongs  exclusively  to  each  nation  to  form  its  own 
judgment  of  what  its  conscience  prescribes  to  it ;  of 
what  it  can,  or  cannot  do ;  of  what  is  proper,  or  im- 
proper for  it  to  do.  And  of  course  it  rests  solely  with 
it  to  examine  and  determine,  whether  it  can  perform 
any  office  for  another  nation,  without  neglecting  the 
duty  which  it  owes  to  itself."  ^  Lord  Stowell  has  pointed 
out  the  same  principle  in  his  usual  felicitous  manner. 
Speaking  with  reference  to  the  validity  of  a  Scotch  mar- 
riage, in  controversy  before  him,  he  remarked ;  "  Being 
entertained  in  an  English  court,  it  (the  cause)  must  be 


•  Bouhier,  Cout.  de  Bourg.  ch.  23,  ^  62,  63,  p.  467. 

2  Kent,  Comm.  Lect.  39,  p.  457,  458,  3d  edit. 

3  Valtel,  Prelim.  Disc.  p.  61,  62,  ^  14,  16. 


CH.  II.]  GENERAL  MAXIMS.  47 

adjudicated  according  the  principles  of  English  law, 
applicable  to  such  a  case.  But  the  only  principle, 
applicable  to  such  a  case,  by  the  law  of  England  is, 
that  the  validity  of  the  marriage  rights  must  be  tried 
by  reference  to  the  law  of  the  country,  where,  if  they 
exist  at  all,  they  had  their  origin.  Having  furnished 
this  principle,  the  law  of  England  withdraws  altogether, 
and  leaves  the  legal  question  to  the  exclusive  judg- 
ment of  the  law  of  Scotland."  ^ 

§  38.  There  is,  then,  not  only  no  impropriety  in  the 
use  of  the  phrase,  "  comity  of  nations,"  but  it  is  the 
most  appropriate  phrase  to  express  the  true  foundation 
and  extent  of  the  obligation  of  the  laws  of  one  nation 
within  the  territories  of  another.^  It  is  derived  alto- 
gether from  the  voluntary  consent  of  the  latter ;  and  is 
inadmissible,  when  it  is  contrary  to  its  known  policy, 
or  prejudicial  to  its  interests.  In  the  silence  of  any 
positive  rule,  affirming,  or  denying,  or  restraining  the 
operation  of  foreign  laws,  courts  of  justice  presume 
the  tacit  adoption  of  them  by  their  own  government, 
unless  they  are  repugnant  to  its  policy,  or  prejudicial 
to  its  interests.  It  is  not  comity  of  the  courts,  but  the 
comity  of  the  nation,  which  is  administered,  and  ascer- 
tained in  the  same  way,  and  guided  by  the  same 
reasoning,  by  which  all  other  principles  of  the  muni- 
cipal law  are  ascertained  and  guided.  ^     The  doctrine 


1  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.  R.  59,  See  Scrimshire  v. 
Scrimshire,  Id.  407,  416. 

2  See  Robinson  v.  Bland,  2  Burr.  R.  1077,  1079  ;  Blanchard  v.  Rus- 
sell, 13  Mass.  R.  4. 

3  See  this  doctrine  expressly  recognized  by  the  Supreme  Court  of  the 
United  Slates,  in  Bank  of  Augusta  v.  Earle,  13  Peters,  R.  519,  589. 
Mr.  Chief  Justice  Taney,  in  delivering  the  opinion  of  the  Court,  said  ; 
"  It  is  needless  to  enumerate  here  the  instances,  in  which,  by  the  general 


48  CONFLICT   OF   LAWS.  [CH.  IL 

of  Huberus  would  seenij  therefore,  to  stand  upon  just 
principles;  and  though,  from  its  generality,  it  leaves 
behind  many  grave  questions  as  to  its  application,  it 
has  much  to  commend  it,  in  point  of  truth,  as  well  as 
of  simplicity.  It  has  accordingly  been  sanctioned  both 
in  England  and  America  by  a  judicial  approbation,  as 
direct  and  universal  as  can  fairly  be  desired  for  the 
purpose  of  giving  sanction  to  it,  as  authority,  or  as 
reasoning.^ 


practice  of  civilized  countries,  the  laws  of  the  one  will,  by  the  comity  of 
nations  be  recognized  and  executed  in  another,  where  the  rights  of  indi- 
viduals are  concerned.  The  cases  of  contracts  made  in  a  foreign  country 
are  familiar  examples ;  and  Courts  of  justice  have  always  expounded  and 
executed  them,  according  to  the  laws  of  the  place  in  which  they  were 
made ;  provided  that  law  was  not  repugnant  to  the  laws  or  policy  of  their 
own  country.  The  comity  thus  extended  to  other  nations  is  no  impeach- 
ment of  sovereignty.  It  is  the  voluntary  act  of  the  nation,  by  which  it  is 
offered  ;  and  is  inadmissible,  when  contrary  to  its  policy,  or  prejudicial  to 
its  interests.  But  it  contributes  so  largely  to  promote  justice  between 
individuals,  and  to  produce  a  friendly  intercourse  between  the  sovereign- 
ties to  which  they  belong,  that  Courts  of  justice  have  continually  acted 
upon  it,  as  a  part  of  the  voluntary  law  of  nations.  It  is  truly  said,  in 
Story's  Conflict  of  Laws,  37,  that,  '  In  the  silence  of  any  positive  rule, 
aflirming,  or  denying,  or  restraining  the  operation  of  foreign  laws,  Courts 
of  justice  presume  the  tacit  adoption  of  them  by  their  own  government ; 
unless  they  are  repugnant  to  its  policy,  or  prejudicial  to  its  interests.  It 
is  not  the  comity  of  the  Courts,  but  the  comity  of  the  nation  which  is 
administered,  and  ascertained  in  the  same  way,  and  guided  by  the  same 
reasoning,  by  which  all  other  principles  of  municipal  law  are  ascertained 
and  guided.'  " 

1  Out  of  the  great  variety  of  authorities  in  which  the  rules  of  Huberus 
are  directly  or  indirectly  approved,  the  reader  is  referred  to  the  follow- 
ing :  —  Co.  Lit.  79,  b,  Hargrave's  note,  44  ;  Robinson  v.  Bland,  2  Burr.  R. 
1077,  1078  ;  Holman  v.  Johnson,  Cowper,  341 ;  2  Kent,  Coram.  Lect,  39, 
p.  453  to  p.  463  (3d  edit.)  ;  Pearsall  v.  Dwight,  2  Mass.  R.  84,  90 ;  De- 
sesbats  v.  Berquier,  1  Binn.  R.  336  ;  Holmes  v.  Remsen,  4  Johns.  Ch.  R. 
469;  Mr.  Cowen's  note  to  4  Cowen,  R,  410;  Saul  v.  His  Creditors, 
17  Martin,  R.  569,  596,  597,  598 ;  Greenwood  v.  Curtis,  6  Mass.  R.  358 ; 
Bank  of  Augusta  v.  Earle,  13  Peters,  R.  519,  588  to  591. 


CH.  111.]  NATIONAL   DOMICIL.  49 


CHAPTER  HI. 

NATIONAL   DOMICIL. 

§  39.  Having  disposed  of  these  preliminary  consider- 
ations, it  is  proposed,  in  the  further  progress  of  these 
Commentaries,  to  examine  the  operation  and  effect  of 
laws  ;  first,  in  relation  to  persons,  their  capacity,  state, 
and  condition  ;  secondly,  in  relation  to  contracts ; 
thirdly,  in  relation  to  property,  personal,  mixed,  and 
real ;  fourthly,  in  relation  to  wills,  successions,  and  dis- 
tributions ;  fifthly,  in  relation  to  persons  acting  in  mitre 
droit,  such  as  guardians,  executors,  and  administrators  ; 
sixthly,  in  relation  to  remedies  and  judicial  sentences  ; 
seventhly,  in  relation  to  penal  laws  and  offences  ;  and 
eighthly,  in  relation  to  evidence  and  proofs. 

§  40.  As,  however,  in  all  the  discussions  upon  this 
subject,  perpetual  reference  will  be  made  to  the  domicil 
of  the  party,  it  may  be  proper  to  ascertain,  what  is  the 
true  meaning  of  the  term  ^'domicil;"  or  rather,  what 
constitutes  the  national  or  local  domicil  of  a  party, 
according  to  the  understanding  of  publicists  and  ju- 
rists/ 

§  41.  By  the  term  "domicil,"  in  its  ordinary  accepta- 
tion, is  meant  the  place,  where  a  person  lives  or  has  his 
home.  In  this  sense  the  place,  where  a  person  has  his 
actual  residence,  inhabitancy,  or  commorancy,  is  some- 


1  Upon  the  subject  of  this  chapter  the  learned  reader  is  referred  to 
Burge's  Comment,  on  Col.  and  Foreign  Law,  Vol.  1,  P.  1,  ch.  2,  p.  32  to 
p.  57. 

CONFL.  5 


60  CONFLICT    OF   LAWS.  [CH.  III. 

times  called  his  domicil.  In  a  strict  and  legal  sense, 
that  is  properly  the  domicil  of  a  person,  where  he  has 
his  true,  fixed,  permanent  home,  and  principal  esta- 
blishment, and  to  which,  whenever  he  is  absent,  he  has 
the  intention  of  returning  (animus  revertendi)} 

§  42.  In  the  Roman  law  it  is  said :  "  There  is  no 
doubt,  that  every  person  has  his  domicil  in  that  place, 
which  he  makes  his  family  residence  and  principal 
place  of  his  business ;  from  which  he  is  not  about  to 
depart,  unless  some  business  requires ;  when  he  leaves  it 
he  deems  himself  a  wanderer  ;  and  when  he  returns  to 
it,  he  deems  himself  no  longer  abroad."  In  eodem  loco 
singidos  Jmhere  domicUium,  non  amhigitiu;  nU  qins  larcm 
renimque  ac  fortunanim  summam  constitidt ;  wide  riirsus 
non  sit  discessurus,  si  nihil  avocet ;  wide  cum  profectus  est, 
peregrinan  videtur :  quod  si  rediit,  peregrinari  jam  destitit? 
And  in  another  place  it  is  said  :  "  If  any  one  always 
carries  on  his  business,  not  in  a  colony,  but  in  a  muni- 
cipality, or  city,  where  he  buys,  sells,  and  contracts ; 
where  he  makes  use  of,  and  attends  the  forum,  the  pub- 
lic baths,  and  public  shows ;  where  he  celebrates  the 
holidays,  and  enjoys  all  municipal  privileges,  and  none  in 
colony  ;  he  is  deemed  there  to  have  his  domicil,  rather 
than  in  the  place  (colony),  in  which  he  sojourns  for  pur- 
poses of  agriculture."  Si  quis  ncgotia  sua  non  in  colonid, 
sed  in  municijno,  semjycr  agit ;  in  illo  vendit,  emit,  contrahit ; 
eo  inforo,  halneo^spectaculis  iititur  ;  ihifcstos  dies  celehrat ; 
omnibus  denique  miinicijyii  commodis,  mdlis  coloniarum,  frui- 
tur  ;  ibi  magis  habere  domiciliuin,  quam  nbi  colendi  causa 


1  Dr.  Lieber's  Encyc.  Americ.  art.  Domicil. 

2  Cod.  Lib.  10,  tit.  39,  1.  7  ;  Pothier,  Pand.  Lib.  50,  n.  15  ;  1  Voet,  ad 
Pand.  Lib.  5,  tit.  1,  n.  92,  p.  314  ;  Id.  n.  94,  p.  345. 


CH.  III.]  NATIONAL   DOMICIL.  51 

diversatur}  And  again  ;  "  He  is  deemed  an  inhabitant, 
who  has  his  domicile  in  any  place,  and  whom  the  Greeks 
call  TTciooixor,  that  is  to  say,  a  neighbor,  or  person  inha- 
biting near  to  a  village.  For  those  are  not  alone  to  be 
deemed  inhabitants,  who  dwell  in  a  town ;  but  those 
also,  who  cultivate  grounds  near  its  limits,  so  that  they 
conduct  themselves,  as  if  their  place  of  abode  were 
there."  Incola  est,  qui  aliqiid  regione  domicUkim  suum  con- 
tuUt ;  qucm  Grceci  nCtQoixov,  {id  est,  juxta  habitantem) 
appellant.  Nee  tantum  hi,  qui  in  oppido  morantur,  incolce 
sunt ;  sed  etiam,  cqui  alicujus  oppidi  finihus  itci  agrmn  ha- 
hent,  lit  in  euni  se  quasi  ifi  aliqiimn  sedem,  recipiant?  Some, 
at  least,  of  these,  are  more  properly  descriptions,  than 
definitions  of  domicil.  Pothier  has  generalized  them 
in  his  own  introduction,  to  this  title  of  the  Pandects, 
and  says  ;  The  seat  of  the  fortune  or  property,  which 
any  person  possesses  in  any  place,  constitutes  his  chief 
domicil.  DomicUlrnn  facit  poti.ssimum  scdes  fortunarmn 
siiarum,  quas  qids  in  aliquo  loco  hahct?  Voet  says  ;  Pro- 
prie  dictum  DomiciUum  est,  quod  qiiis  sihi  constituet  animo 
inde  non  dccedcndi,  si  nan  aliud  avocet} 

§  43.  The  French  jurists  have  defined  domicil  to  be 
the  place,  where  a  person  has  his  principal  establish- 
ment. Thus  Denizart  says  ;  "  The  domicil  of  a  person 
is  the  place,  where  a  person  enjoys  his  rights,  and  esta- 
blishes his  abode,  and  makes  the  seat  of  his  property." 
Le  domicile  est  le  lieu,  oil  une  personne,  joidssant   de   ses 


1  Dig.  Lib.  50,  tit.  1, 1.  27  ;  Pothier,  Pand.  Lib.  50,  tit.   1,  n.  18  ;  2 
Domat,  Public  Law,  B.  1,  tit.  16,  ^  3,  art.  4. 

2  Dig.  Lib.  50,  tit.  16,  L  239,  ^  2  ;  Id.  1.  203  ;  Pothier,  Pand.  Lib.  50, 
n.  16. 

3  Pothier,  Pand.  Lib.  50,  tit.  1,  Introd.  art.  2,  n.  18. 
*  Voet,  ad  Pand.  Lib.  5,  tit,  1,  n.  94. 


52  CONFLICT   OF   LAWS.  [CH.  HI. 

droits,  etahlit  sa  demeure  d  le  siege  de  sa  fortune}  The 
Encyclopedists  say  ;  "  That  it  is,  properly  speaking, 
the  place  where  one  has  fixed  the  centre  of  his  busi- 
ness." C'cst,  a  jorojyrement  imrler,  Vendroit,  oil  Von  a  place 
le  centre  de  ses  affaires?-  Pothier  says ;  "  It  is  the  place, 
where  a  person  has  established  the  principal  seat  of  his 
residence  and  of  his  business."  C'est  le  lieu,  ou  line 
personne  a  etaUi  le  siege  principal  de  sa  demeure  et  de  ses 
affaires?  And  the  modern  French  Code  declares,  that 
the  domicil  of  every  Frenchman,  as  to  the  exercise  of 
civil  rights,  is  the  place,  where  he  has  his  principal 
establishment ;  (Ust  le  lieu,  ou  il  a  son  principal  etahlisse- 
ment.y  Vattel  has  defined  domicil  to  be  a  fixed  resi- 
dence in  any  place,  with  an  intention  of  always  stay- 
ing there.^  But  this  is  not  an  accurate  statement.  It 
would  be  more  correct  to  say,  that  that  place  is  properly 
the  domicil  of  a  person,  in  which  his  habitation  is 
fixed,  without  any  present  intention  of  removing  there- 
from.^ [The  definition  of  the  word  domicil  is,  however, 
not  without  difficulty,  and  in  a  late  case  it  was  observed 
by  Dr.  Lushington,  that  although  so  many  powerful 
minds  had  been  applied  to  this  question,  there  is  no 
universally  agreed  definition  ;  no  agreed  enumeration 
of  the  ingredients  which  constitute  domicil  j  the  gra- 
dation from  residence  to  domicil  consists  both  of  circum- 
stances and  intention.'] 


1  Denizart,  art.  Domicil. 

2  Encyclop.  Moderne,  art.  Domicil. 

3  Pothier,  Introd.  G6n.  Cout.  d'Orltans,  ch.  1,  ^  1,  art.  8. 

4  Cod.  Civ.  art.  102.     See  also  Merlin,  R6pert.  art.  Domicil. 

5  Vattel,  B.  l,ch.  19,  §22. 

6  Dr.  Lieber's  Encyc.  Amer.  Domicil ;  Putnam  v.  Johnson,  10  Mass. 
R.  488  ;  Tanner  v.  King,  11  Louisiana  Rep.  175.  [Rue  High,  appellant, 
2  Dougl.  523  ;  Greene  v.  Windham,  13  Maine,  225.] 

["  Maltass  v.  Maltass,  1  Roberts.  74.   And  see  Moore  v.  Budd,  4  Hagg. 


CH.  III.]  NATIONAL   DOMICIL.  53 

§  44.  Two  things,  then,  must  concur  to  constitute 
domicil ;  first,  residence  ;  and  secondly,  the  intention 
of  making  it  the  home  of  the  party.  There  must  he 
the  fact,  and  the  intent ;  for,  as  Pothier  has  truly  ob- 
served, a  person  cannot  establish  a  domicil  in  a  place, 
except  it  be  animo  et  facto}  Voet  emphatically  says  ; 
lUud  certum  est,  neque  solo  animo  atque  destinatione  patris 
famiUas,  aut  contestatione  sold,  sine  re  et  pacto,  domicilium 
constitui ;  neque  sold  domus  comjKimtione  in  aliqua  regione  ; 
neque  sold  hahitatione,  sine  proposito  illlc  perpetuo  morandi? 
So  D'Argentre  says  ;  Quamohrem,  qui  figendi  ejus  ani- 
mum  non  hahent,  scd  usus,  necessitatis,  aut  ncgotiationis  causa 
alicuhi  sint,  ^^rofww^s  a  ncgotio  discessuri,  domicilium  nullo 
tempo)-is  spatio  constituent ;  cum  neque  animus  sine  facto, 
neque  factum  sine  animo  ad  id  suffieiat.^  However ;  in 
many  cases  actual  residence  is  not  indispensable  to  re- 
tain a  domicil,  after  it  is  once  acquired ;  but  it  is 
retained,  animo  solo,  by  the  mere  intention  not  to  change 
it,  or  to  adopt  another.     If,  therefore,  a  person  leaves 

R.  352  ;  Burton  v.  Fisher,  1  Milw.  R.  187  ;  Phillimore  on  Domicil,  p. 
13  ;  Munroe  v.  Munroe,  7  Clark  &  Finn.  842.  For  the  difference  between 
residence  and  domicil,  see  Foster  v.  Hall,  4  Humph.  346  ;  m  re  Thompson, 
1  Wend.  43.  In  Harvard  College  v.  Gore,  5  Pick.  R.  370,  and  Lyman 
V.  Fiske,  17  Pick.  R.  231,  it  was  intimated  that  there  might  be  a  differ- 
ence between  hahilalion  and  domicil.  See  also  in  re  Wrigley,  4  Wend. 
r>02  ;  S.  C.  8  Wend.  134  ;  Exeter  v.  Brighton,  15  Maine,  58  ;  Jefferson  v. 
Washington,  19  Maine,  293.  So,  between  the  words  domicil  and  "set- 
tlement "  under  the  pauper  laws  of  a  country.  Phillips  v.  Kingfield,  19 
Maine,  375.  But  these  words  are  often  used  as  exactly  synonymous  with 
domicil,  as  generally  understood.  See  Hylton  v.  Brown,  1  Wash.  C.  C. 
299  ;  Moore  v.  Wilkins,  10  New  Hamp.  452  ;  Lamb  v.  Smythe,  15 
Mces.  &  Welsh.  433  ;  Blanchard  v.  Stearns,  5  Met.  298.] 

1  Pothier,  Cout.  d'0rl6ans,  ch.  1,^1,  art.  9.  See  Scrimshire  v.  Scrim- 
shire,  2  Hagg.  Ecc.  R.  405,  406.  [See  Hallowell  v.  Saco,  5  Greenl.  R. 
143,  (Bennett's  Ed.)  and  note;  Greene  u.  Windham,  13  Maine,  225; 
Wayne  v.  Greene,  21  Maine,  357  ;  Leach  v.  Pillsbury,  15  N.  H.  R.  137.] 

2  1  Voet,  ad  Pand.  Lib.  5,  tit.  1,  n.  98,  p.  346. 

3  D'Argentre,  ad  Leg.  Britonum,  art.  9,  n.  4,  p.  26. 

5* 


54  CONFLICT   OF  LAWS.  [CH.  III. 

Ms  home  for  temporary  purposes,  but  with  an  intention 
to  return  to  it,  this  change  of  place  is  not  in  law  a 
change  of  domicil.  Thus,  if  a  person  should  go  on  a 
voyage  to  sea,  or  to  a  foreign  country,  for  health,  or  for 
pleasure,  or  for  business  of  a  temporary  nature,  with 
an  intention  to  return,  such  a  transitory  residence  would 
not  constitute  a  new  domicil,  or  amount  to  an  abandon- 
ment of  the  old  one  -,  for  it  is  not  the  mere  act  of  inhabit- 
ancy in  a  place,  which  makes  it  the  domicil ;  but  it  is  the 
fact,  coupled  with  the  intention  of  remaining  there, 
anmo  manendi} 

§  45.  It  is  sometimes  a  matter  of  no  small  difficulty 
to  decide,  in  what  place  a  person  has  his  true  or  proper 
domicil.  His  residence  is  often  of  a  very  equivocal 
nature  ;  and  his  intention  as  to  that  residence  is  often 
still  more  obscure.^  Both  are  sometimes  to  be  gathered 
from  slight  circumstances  of  mere  presumption,  and 
from  equivocal  and  conflicting  acts.  An  intention  of 
permanent  residence  may  often  be  ingrafted  upon  an 
inhabitancy  originally  taken  for  a  special  or  fugitive 
purpose.3  And,  on  the  other  hand,  an  intention  to 
change  the  domicil  may  be  fully  announced,  and  yet  no 
correspondent  change  of  inhabitancy  may  be  actually 
made.'*  DomiciUiun  re  ct  facto  trangfertiu',  non  nudd  con- 
testatione.^   The  Roman  lawyers  were  themselves  greatly 


1  Pothier,  Cout.  d'Orleans,  ch.  1,  ^  1,  art.  9  ;  Encyclop.  Amer.  art, 
Domicil;  Burton  v.  Fisher,!  Milvv.  Cons.  R.  188.  Cochin,  CEuvres, 
tarn.  5,  p.  4,  5,  6,  4to.  edit. 

2  Pothier,  Cout.  d'Orleans,  ch.  1,  art.  20  ;  Merlin,  Repert.  Domicil, 
^  2,  6  ;  Bouhier,  Cout.  de  Bourg.  ch.22,  §  196  to  ^  206. 

3  The  Harmony,  2  Robinson,  R.  332,  324  ;  Pothier,  Cout.  d'Orleans, 
ch.  1,  art.  15. 

4  See  Harvard  College  v.  Gore,  5  Pick.  R.  370.  [Hallowell  v.  Saco, 
5  Greenl.  R.  (Bennett's  Ed.)  143  ;  Greene  u.  Windham,  13  Maine,  225.] 

5  Dig.  Lib.  50,  tit.  1,  1.  20  ;  Pothier,  Pand.  Lib.  50,  tit.  1,  n.  26. 


CH.  III.]  NATIONAL   DOMICIL.  55 

puzzled  upon  this  subject  by  cases  of  an  equivocal 
nature  ;  and  TJlpian,  and  Labeo,  and  others,  held  differ- 
ent opinions  respecting  them.^  Thus,  to  the  question, 
"where  a  person  had  his  domicil,  who  did  his  business 
equally  in  two  places,  Labeo  answered,  that  he  had  no 
domicil  in  either  place.^  But  other  jurists,  and  among 
them  was  Ulpian,  were  of  opinion,  that  a  man  might  in 
such  a  case  have  two  domicils,  one  in  each  place.^  Cel- 
sus  seems  to  have  thought,  that,  in  such  a  case,  which 
place  was  the  domicil  of  the  party  depended  upon  his 
own  choice  and  intention/  And  Julian  doubted,  whe- 
ther, if  he  had  no  fixed  choice  and  intention,  he  could 
have  two  domicils.^ 

[§  45,  a.  The  question  of  domicil,  and  the  possibility 
of  the  existence  of  two  domicils,  was  much  discussed 
in  a  late  case  in  Massachusetts,  and  Chief  Justice  Shaw 
there  said,  that  in  determining  such  an  inquiry,  two 
important  considerations  must  be  kept  steadily  in 
view  ;  First,  that  every  person  must  have  a  domicil 
somewhere  ;  Second,  that  a  person  can  have  only  one 
domicil  for  one  purpose,  at  one  and  the  same  time.'^] 


1  Dig.  Lib.  50,  tit.  1,  1.  5  ;  Id.  1.  27,  ^  1,  2,  3  ;  Pothier,  Pand.  Lib. 
50,  tit.  1,  n.  IG  ;  Id.  n.  18,  21,  22. 

2  Dig.  Lib.  50,  tit.  1,  1.  5  ;  Pothier,  Pand.  Lib.  50,  tit.  1,  n.  18  ;  Post, 
§47. 

3  Dig.  Lib.  50,  tit.  1,  L  6,  §  2  ;  Pothier,  Pand.  Lib.  50,  tit.  1,  n.  18. 

4  Dig.  Lib.  50,  tit.  1,  1.  27,  §  2  ;  Pothier,  Pand.  Lib.  50,  tit.  1,  n.    18. 

5  Dig.  Lib.  50,  tit.  1,  L  27,  ^  2  ;  Pothier,  Pand.  Lib.  50,  tit.  1,  n.  1«  ; 
Somerville  v.  Soraerville,  5  Vesey,  750,  786,  790  ;  2  Domat,  Public  Law, 
B.  1,  tit.  16,  §  3,  p.  462  ;  Id.  art.  6  ;  Post,  §  47. 

[6  Abington  v.  North  Bridgewater,  23  Pick.  R.  170,  177.  In  this  case 
the  learned  Chief  Justice  said  in  giving  judgment  :  "  Every  one  has  a 
domicil  of  origin,  which  he  retains  until  he  acquires  another  ;  and  the 
one  thus  acquired,  is  in  like  manner  retained.  The  supposition,  that  a 
man  can  have  two  domicils,  would  lead  to  the  absurdcst  consequences.   If 


56  CONFLICT    OP   LAWS.  [CH.  III. 

§  46.  Without  speculating  upon  all  the  various  cases, 
which  may  be  started  upon  this  subject,  it  may  be  use- 
ful to  collect  together  some  of  the  more  important  rules, 


he  had  two  domicils  within  the  limits  of  distant  sovereign  States,  in  case 
of  war,  what  would  be  an  act  of  imperative  duty  to  one,  would  make  him 
a  traitor  to  the  other.  As  not  only  sovereigns,  but  all  their  subjects,  col- 
lectively and  individually,  are  put  into  a  state  of  hostility  by  war,  he 
would  become  an  enemy  to  himself,  and  bound  to  commit  hostilities  and 
afford  protection,  to  the  same  persons  and  property  at  the  same  time.  But 
without  such  an  extravagant  supposition,  suppose  he  were  domiciled  with- 
in two  military  districts  of  the  same  State,  he  might  be  bound  to  do  per- 
sonal service  at  two  places,  at  the  same  time  ;  or  in  two  counties,  he 
would  be  compellable,  on  peril  of  attachment,  to  serve  on  juries  at  two 
remote  shire  towns  ;  or  in  two  towns,  to  do  watch  and  ward  in  two  dif- 
ferent places.  Or,  to  apply  an  illustration  from  the  present  case.  By  the 
provincial  laws  cited,  a  man  was  liable  to  be  removed  by  a  warrant,  to  the 
place  of  his  settlement,  habitancy,  or  residence,  for  all  these  terms  are 
used.  If  it  were  possible,  that  he  could  have  a  settlement  or  habitancy,  in 
two  different  towns  at  the  same  time,  it  would  follow  that  two  sets  of  civil 
officers,  each  acting  under  a  legal  warrant,  would  be  bound  to  remove  him 
by  force,  the  one  to  one  town,  and  the  other  to  another.  These  proposi- 
tions, therefore,  that  every  person  must  have  some  domicil,  and  can  have 
but  one  at  one  time,  for  the  same  purpose,  are  rather  to  be  regarded  as 
fostulata,  than  as  propositions  to  be  proved.  Yet  we  think  they  go  far, 
in  furnishing  a  test,  by  which  the  question  may  be  tried  in  each  particular 
case.  It  depends  not  upon  proving  particular  facts,  but  whether  all  the 
facts  and  circumstances  taken  together,  tending  to  show  that  a  man  has 
his  home  or  domicil  in  one  place,  overbalance  all  the  like  proofs,  tending 
to  establish  it  in  another  ;  such  an  inquiry,  therefore,  involves  a  compari- 
son of  proofs,  and  in  making  that  comparison,  there  are  some  facts,  which 
the  law  deems  decisive,  unless  controlled  and  counteracted  by  others  still 
more  stringent.  The  place  of  a  man's  dwelling-house  is  first  regarded, 
in  contradistinction  to  any  place  of  business,  trade,  or  occupation.  If  he 
has  more  than  one  dwelling-house,  that  in  which  he  sleeps  or  passes  his 
nights,  if  it  can  be  distinguished,  will  govern.  And  we  think  it  settled 
by  authority,  that  if  the  dwelling-house  is  partly  in  one  place  and  partly 
in  another,  the  occupant  must  be  deemed  to  dwell  in  that  town,  in  which 
he  habitually  sleeps,  if  it  can  be  ascertained."  And  see  Walke  v.  Bank 
of  Circleville,  15  Ohio,  288  ;  Thorndike  v.  City  of  Boston,  1  Mete.  242. 
For  some  purposes  it  has  been  said  a  person  may  have  two  domicils,  at 
the  same  time.  Greener.  Greene,  11  Pick.  R.  410  ;  Putnam  t;.  John- 
son, 10  Mass.  488  ;  Somerville  v.  Somerville,  5  Ves.  750.] 


CH.  III.]  NATIONAL   DOMICIL.  57 

which  have  been  generally  adopted,  as  guides  in  the 
cases,  which  are  of  most  familiar  occurrence.  First,  the 
place  of  birth  of  a  person  is  considered  as  his  domicil, 
if  it  is  at  the  time  of  his  birth  the  domicil  of  his  parents. 
Patris  oric/mcm  iinusquisqiie  scquatiir}  This  is  usually  de- 
nominated the  domicil  of  birth  or  nativity,  domiciliwn 
oriyinis.  But,  if  the  parents  are  then  on  a  visit,  or  on 
a  journey,  {in  itinere.)  the  home  of  the  parents  (at  least 
if  it  is  in  the  same  country)  will  be  deemed  the  domicil 
of  birth  or  nativity.-  If  he  is  an  illegitimate  child,  he 
follows  the  domicil  of  his  mother.  Ejus,  qidjiistwn  pa- 
trem  non  hcibet,  pima  origo  a  matre?  Secondly,  the 
domicil  of  birth  of  minors  continues,  until  they  have 
obtained  a  new  domicil.  Thirdly,  minors  are  generally 
deemed  incapable,  iwoprio  marte,  of  changing  their  do- 
micil during  their  minority ;  and,  therefore,  they  retain 
the  domicil  of  their  parents ;  and  if  the  parents  change 
their  domicO,  that  of  the  infant  children  follows  it ;  and 
if  the  father  dies,  his  last  domicil  is  that  of  the  infant 
children."*  Placet  etiam  filium-famiUas  domieiliimi  habere 
posse  ;  non  iitique  iM,  iibi pater  hahuit,scdiibicimque  ipse  con- 
stitidt.^    Fourthly,  a  married  woman  follows  the  domi- 


1  Cod.  Lib.  10,  tit.  31,  1.  36 ;  2  Domat,  Public  Law,  B.  1,  tit.  16,  §  3, 
art.  10  ;  1  Boullenois,  Observ.  4,  p.  53  ;  Voet,  ad  Pand.  Lib.  5,  tit.  1,  n. 
91, 92,  100.  See  Scrimshire  v.  Scrimshire,  2  Hagg.  Ecd.  R.  405, 406  ;  Co- 
chin, CEuvres,  Tom.  5,  p.  5,  6 ;  Id.  698,  4to.  edit. 

2  Dr.  Lieber's  Encyc.  Amer.  art.  Domicil ;  Pothier,  Cout.  d'0rl6ans, 
ch.  1,  art.  10,  12  ;  Somerville  v.  Soraerville,  5  Vesey,  750,  787  ;  1  Boul- 
lenois, Observ.  4,  p.  53. 

3  Dig.  Lib.  50,  tit.  1,  1.  9  ;  Pothier,  Pand.  Lib.  50,  tit.  1,  n.  3. 

^  Id.  ;  Pothier,  Cout.  d'Orleans,  ch.  1,  art.  12,  16;  2  Domat,  Public 
Law,  B.  16,  tit.  16  ;  §  3,  art.  10  ;  Guier  v.  O'Daniel,  1  Binn.  R.  349, 
351 ;  Voet,  ad  Pand.  Lib.  5,  tit.  1,  n.  91,  92,  100. 

5  Dig.  Lib.  50,  tit.  1,1.  1,  3,  4  ;  Pothier,  Pand.  Lib.  50,  tit.  1,  n.  25. 
Whether  a  father  or  guardian  can  change  the  domicil  of  a  minor,  or  idiot, 
or  insane  person,  under  his  charge,  has  been  matter  of  doubt,  upon  which 


58  CONFLICT    OF   LAWS.  [CH.  IIL 

oil  of  her  husband.^  This  results  from  the  general  prin- 
ciple, that  a  person,  who  is  under  the  power  and  autho- 
rity of  another,  possesses  no  right  to  choose  a  domicil.^ 
3IuUeremy  qimmdm  nujjta  est,  ineolam  ejusdem  civitatis  vi- 
dcri,  cvjus  maritus  ejus  est?  Fifthly,  a  widow  retains 
the  domicil  of  her  deceased  husband,  until  she  obtains 
another  domicil.  Vidua  midier  amissi  mariti  domicilmm 
retinet}  Sixthly,  2y^i^nd  facie,  the  place,  where  a  person 
lives,  is  taken  to  be  his  domicil,  until  other  facts  esta- 
blish the  contrary.^  Seventhly,  every  person  of  full  age, 
having  a  right  to  change  his  domicil,  it  follows,  that  if 
he  removes  to  another  place,  with  an  intention  to  make 
it  his  permanent  residence  (animo  manendi),  it  becomes 


different  opinions  have  been  expressed  by  jurists.  In  the  affirmative  there 
may  be  found  among  others,  Bynkershoeck,  Boullenois,  Bretannier.  In 
the  negative,  Pothier  and  Mornac.  See  Pothier,  Cout.  d'Orl^ans,  ch.  1, 
art.  17;  Bynker.  Quaest.  Privat.  Juris.  Lib.  1,  ch.  16  ;  Merlin,  Pv6pert. 
Domicil,  §  5,  art.  2,  3  ;  Boullenois,  Quest,  de  la  Coutrari6t6  des  Lois, 
Quest.  2,  p.  40,  edit.  1732.  See  also  Guier  v.  O'Daniel,  1  Binn.  R.  349, 
note ;  Somerville  v.  Somerville,  5  Ves.  750,  787  ;  School  Directors  v. 
James,  2  Watts  &  Serg.  568  ;  Potinger  v.  Wightman,  3  Merivale,  R.  67  ; 
Cutts  V.  Haskins,  9  Mass.  R.  543  ;  Holyoke  v.  Haskins,  5  Pick.  R.  20; 
[Leeds  v.  Freeport,  10  Maine,  356.] 

1  Voet,  ad  Pand.  Lib.  5,  tit.  1,  n.  101  ;  Warrender  v.  Warrender,  9 
Bligh,  R.  89,  103,  104  ;  [Greene  v.  Greene,  11  Pick.  R.  411.  If,  how- 
ever, the  relations  between  husband  and  wife  become  adverse,  her  domicil 
may  become  different  from  his,  at  least  to  allow  her  to  file  a  bill  for  divorce. 
See  Harding  v.  Alden,  9  Greenl.  R.  140  ;  Harteau  v.  Harteau,  14  Pick. 
R.  187  ;  Irby  v.  Wilson,  1  Dev.  &  Batt.  Eq.  R.  568.] 

2  Dr.  Lieber's  Encyc.  Amer.  Domicil;  Pothier,  Cout.  d'Orleans,  ch.  1, 
art.  10  ;  2  Domat,  Public  Law,  B.  1,  tit.  16,  ^  3,  art.  11,  13;  Merlin, 
Repert.  Domicil,  ^  5. 

3  Dig.  Lib.  50,  tit.  1, 1.  38,  ^  3 ;  Id.  Lib.  5,  tit.  1,  1.  65  ;  Pothier,  Pand. 
Lib.  50,  tit.  1,  n.  24;  2  Domat,  Public  Law,  B.  1,  tit.  16,  ^  3,  art.  12; 
Voet,  ad  Pand.  Lib.  5,  tit.  1,  n.  101. 

4  Dig.  Lib.  50,  tit.  1, 1.  22,  §  1  ;  Pothier,  Pand.  Lib.  50,  tit.  1,  n.  28. 

5  Bruce  v.  Bruce,  2  Bos.  &  Pull.  228,  note;  Id.  230  ;  Bempde  v. 
Johnstone,  3  Ves.  198,  201  ;  Stanley  v.  Bernes,  3  Hagg.  Eccles.  R.  374, 
437. 


en.  III.]  NATIONAL   DOMICIL.  59 

instantaneously  his  place  of  clomicil.^  Eighthly,  if  a 
person  has  actually  removed  to  another  place,  with  an 
intention  of  remaining  there  for  an  indefinite  time,  and 
as  a  place  of  fixed  present  domicil,  it  is  to  be  deemed 
his  place  of  domicil,  notwithstanding  he  may  entertain 
a  floating  intention  to  return  at  some  future  period." 
Ninthly,  the  place,  where  a  married  man's  family  re- 
sides, is  generally  to  be  deemed  his  domicil.^  But  the 
presumption  from  this  circumstance  may  be  controlled 
by  other  circumstances  ;  for  if  it  is  a  place  of  temporary 
establishment  only  for  his  family,  or  for  transient  objects, 
it  will  not  be  deemed  his  domicil.''  Tenthly,  if  a  mar- 
ried man  has  his  family  fixed  in  one  place,  and  he  does 
his  business  in  another,  the  former  is  considered  the 
place  of  his  domicil.^ 

§  47.  Eleventhly,  if  a  married  man  has  two  places  of 
residence  at  different  times  of  the  year,  that  will  be  es- 
teemed his  domicil,  which  he  himself  selects,  or  describes, 
or  deems,  to  be  his  home,  or  which  appears  to  be  the 
centre  of  his  afljxirs,  or  where  he  votes,  or  exercises  the 
rights  and  duties  of  a  citizen.^  Twelfthly,  if  a  man  is 
unmarried,  that  is  generally  deemed  the  place  of  his 
domicil,  where  he  transacts  his  business,  exercises  his 


1  Pothier,  Cout.  d'Orl^ans,  ch.  1,  art.  13. 

2  Bruce  v.  Bruce,  2  Bos.  &  Pull.  228,  note  ;  Id.  230;  Stanley  v. 
Bernes,  3  Hagg.  Eccles.  R.  374.  [See  the  important  case  of  Sears  v. 
City  of  Boston,  1  Mete.  250.  Also,  Thorndike  v.  City  of  Boston,  1  Mete. 
242  ;  Greene  v.  Windham,  13  Maine,  225.] 

3  Pothier,  Cout.  d'Orieans,  ch.  1,  art.  20  ;  Bempde  v.  Johnstone,  3  Ves. 
198,  201.     [See  Bump  v.  Smith,  11  New  Hamp.  R.  48.] 

4  Pothier,  Cout.  d'0rl6ans,  ch.  1,  art.  15. 
f>  Ante,  ^  42,  43,  44. 

6  Potliier,  Cout.  d'Orleans,  ch.  1,  art.  20;  Somerville  v.  Somerville, 
5  Ves.  750,  788,  789,  790  ;  Harvard  College  v.  Gore,  5  Pick.  R.  370  ; 
Cochin,  (Euvres,  Tom.  3,  p.  702,  4to.  edit. 


60  CONFLICT    OF   LAWS.  [CH.  IIL 

profession,  or  assumes  and  exercises  municipal  duties 
or  privileges.-^  But  this  rule  is  of  course  subject  to 
some  qualifications  in  its  application.^  Thirteenthly, 
residence  in  a  j^lace,  to  produce  a  change  of  domicil, 
must  be  voluntary.  If,  therefore,  it  be  by  constraint, 
or  involuntary,  as  by  banishment,  arrest,  or  imprison- 
ment, the  antecedent  domicil  of  the  party  remains.^ 
Fourteenthly,  the  mere  intention  to  acquire  a  new  do- 
micil, without  the  fact  of  an  actual  removal,  avails 
nothing ;  neither  does  the  fact  of  removal  without  the 
intention.^  Fifteenthly,  presumptions  from  mere  cir- 
cumstances will  not  prevail  against  positive  facts,  which 
fix,  or  determine  the  domicil.^  Sixteenthly,  a  domicil 
once  acquired  remains,  until  a  new  one  is  acquired.*^  It 
is  sometimes  laid  down,  that  a  person  may  be  without 
any  domicil ;  as  if  he  quits  a  place  with  an  intent  to  fix 
in  another  place,  it  has  been  said,  that  while  he  is  in 
transitu,  he  has  no  domicil.  Julian,  in  the  Roman  law, 
has  so  affirmed.  >S'/  qiiis  domicilio  relido  naviget,  vel  iter 
faciat,  qiicerens  quo  se  conferat,  atque  uU  constituat ;  hunc 
fido  sine  domicilio  esse?  But  the  more  correct  principle 
would  seem  to  be,  that  the  original  domicil  is  not  gone. 


1  Somerville  v.  Somerville,  5  Ves.  750,  788,  789. 

2  Idem. 

3  2  Domat,  Public  Law,  B.  1,  tit.  16,  §  3,  art.  14  ;  Merlin,  Repertoire, 
Domicil,  ^  4,  art.  3;  Bempde  v.  Johnstone,  3  Ves.  198,  202.  [Grants. 
Dalliber,  11  Conn.  R.  234;  Holbeck  v.  Leeds,  2  Eng.  Rep.  245  ;  Dan- 
ville v.  Putney,  6  Vermont,  512  ;  Woodstock  V.  Hartland,  21  Vermont, 
563.J 

4  Ante,  §  44. 

5  Dr.  Lieber,  Encyc.  Amer.  Domicil ;  Ante,  §  42,  43,  44. 

C  Somerville  v.  Somerville,  5  Ves.  750,  787  ;  Merlin,  Repertoire,  Dowz- 
cil,  ^  2  ;  Harvard  College  v.  Gore,  5  Pick.  R.  370 ;  Cochin,  (Euvres,  Tom. 
5,  p.  5,  6,  4to.  edit. 

7  Dig.  Lib.  50,  tit.  1, 1.  27,  ijy  2  ;  Pothier,  Pand.  Lib.  30,  tit.  1,  n.  18  ; 
2  Domat,  Public  Law,  B.  1,  tit.  16,  ^  3,  art.  9  ;  Ante,  §  45. 


CH.  III.]  NATIONAL   DOMICIL.  61 

until  a  new  one  has  been  actually  acquired, /«(?/<?  et  ani- 
mo}  Seventeenthly,  if  a  man  has  acquired  a  new  domi- 
cil,  different  from  that  of  his  birth,  and  he  removes  from 
it  with  an  intention  to  resume  his  native  domicil,^  the 
latter  is  reacquired,  even  while  he  is  on  his  way,  in 
itincrCy  for  it  reverts  from  the  moment  the  other  is  given 

§  48.  The  foregoing  rules  principally  relate  to  changes 
of  domicil  from  one  place  to  another  within  the  same 
country,  or  territorial  sovereignty,  although  many  of 
them  are  applicable  to  residence  in  different  countries 
or  sovereignties.  In  respect  to  the  latter  there  are  cer- 
tain principles,  which  have  been  generally  recognized 
by  tribunals  administering  public  law,  or  the  law  of 
nations,  as  of  unquestionable  authority.  First ;  Per- 
sons, who  are  born  in  a  country,  are  generally  deemed 
to  be  citizens  and  subjects  of  that  country.^  A  reasona- 
ble qualification  of  the  rule  would  seem  to  be,  that  it 
should  not  apply  to  the  children  of  parents,  who  were 
in  itinere  in  the  country,  or  who  were  abiding  there  for 
temporary  purposes,  as  for  health,  or  curiosity,  or  occa- 
sional business.  It  would  be  difficult,  however,  to  assert, 
that  in  the  present  state  of  public  law  such  a  qualifica- 


1  See  Jennison  v.  Hapgood,  10  Pick.  R.  77 ;  Bruce  v.  Bruce,  2  Bos.  & 
Pull.  228  ;  [Moore  v.  VV^ilkins,  10  New  Hamp.  R.  452] ;  Cochin,  GEuvres, 
Tom.  5,  p.  5,  G,  4to.  edit.  ;  Ante,  §  44. 

2  The  acquired  domicil  must  be  finally  and  totally  abandoned,  before 
the  domicil  of  origin  revives.     Craigie  v.  Craigie,  3  Curteis,  435. 

3  The  Indian  Chief,  3  Rob.  12  ;  La  Virginie,  5  Rob.  98 ;  [The  Venus, 
8  Cranch,  253;  State  v.  Hallett,  8  Ala.  R.  159  ;  The  Ship  Ann  Green, 
1  Gallis.  275  ;  Catlin  v.  Gladding,  4  Mason,  308.]  On  the  subject  of  Do- 
micil the  learned  reader  is  referred  to  Fergusson  on  Marriage  and  Divorce, 
Appendix,  p.  277  to  362  ;  and  Henry  on  Foreign  Law,  Appendix  A.  p. 
181,  &c;  Cochin,  (Euvres,  Tom.  5,  p.  4,  5,  6,  4to.  edit.;  Ex  parte 
Wrigby,  8  Wend.  R.  134. 

4  1  Black.  Comm.  366,  369. 

CONFIi.  6 


62  CONFLICT    OF    LAWS.  [CH.  IIL 

tion  is  universally  established.  Secondly  ;  Foreigners, 
wlio  reside  in  a  country  for  permanent  or  indefinite  pur- 
poses, animo  manendi,  are  treated  universally  as  inhabit- 
ants of  that  country.-^  Thirdly ;  A  national  character, 
acquired  in  a  foreign  country  by  residence,  changes 
when  the  party  has  left  the  country  animo  non  rever- 
tendi,  and  is  on  his  return  to  the  country,  where  he  had 
his  antecedent  domicil.  And  especially,  if  he  be  in 
itinere  to  his  native  country  with  that  intent,  his  native 
domicil  revives,  while  he  is  yet  in  tiwisitu ;  for  the 
native  domicil  easily  reverts.^  The  moment  a  foreign 
domicil  is  abandoned,  the  native  domicil  is  reacquired. 
But  a  mere  return  to  his  native  country,  without  an 
intent  to  abandon  his  foreign  domicil,  does  not  work 
any  change  of  his  domicil.^  Fourthly;  Ambassadors 
and  other  foreign  ministers  retain  their  domicil  in  the 
country,  which  they  represent,  and  to  which  they  be- 
long.^ But  a  different  rule  generally  applies  to  Con- 
suls, and  to  other  commercial  agents,  who  are  presumed 
to  remain  in  a  country  for  purposes  of  trade,  and  who 
therefore  acquire  a  domicil,  where  they  reside.^  Fifthly ; 
Children  born  upon  the  sea  are  deemed  to  belong,  and 
to  have  their  domicil  in  the  country,  to  which  their 
parents  belong.^ 

§  49.  From  these  considerations  and  rules  the  gene- 


1  Vattel,  Lib.  1,  ch.  19,  §  213. 

2  The  Venus,  8  Cranch,  278,  281  ;  The  Frances,  8  Cranch,  335  ;  The 
Indian  Chief,  3  Rob.  12  ;  Bempde  v.  Johnstone,  3  Ves.  198,  202  ;  The 
Friendschaft,  3  Wheaton,  R.  14  ;  Ommany  v.  Bingham,  cited  5  Ves.  jr. 
756,  757,  765. 

3  Ibid. 

4  Vattel,  B.  1,  ch.  19,  ^  217  ;  The  Indian;  Chief,  3  Rob.  13,  27  ;  The 
Josephine,  4  Rob.  20. 

5  Ibid. 

6  Vattel,  B.  1,  ch.  19,  ^  218  ;  Dr.  Leiber's  Encyc.  Araer.  art.  Domicil. 


CH.  ni.]  NATIONAL   DOMICIL.  63 

ral  conclusion  may  be  deduced,  that  domicil  is  of  three 
sorts ;  domicil  by  birth,  domicil  by  choice,  and  domicil 
by  operation  of  law.  The  first  is  the  common  case  of 
the  place  of  birth,  domieilium  originis ;  the  second  is 
that,  which  is  voluntarily  acquired  by  a  party,  proprio 
marie.  The  last  is  consequential,  as  that  of  the  wife 
arising  from  marriage.^ 


1  Pothier,  Cout.  d'Orlfians,  ch.  1,  art.  12.  —  Whoever  wishes  to  make 
more  extensive  researches  upon  this  subject,  may  consult  Denizart's  Dic- 
tionary, art.  Domicil;  Encyclop6die  Moderne,  Tom.  10,  art.  Domicil; 
Merlin,  Repertoire,  Domicil;  2  Domat  (by  Strahan,)  p.  484  ;  Lib.  1,  tit. 
16,  ^  3,  of  Public  Law ;  Dig.  Lib.  50,  tit.  1,  per  tot.  ;  Cod.  Lib.  10,  tit. 
30,  1.  2,  to  1.  7  ;  Voet.  ad  Pandect.  Lib.  5,  tit.  1,  ^  90  to  §  92  ;  Bynker- 
shoek,  Qusest.  Priv.  Juris.  Lib.  1,  ch.  11,  and  the  authorities  cited  in 
Dr.  Lieber's  Encyclopedia  Americana,  Domicil;  Henry  on  Foreign  Law, 
Appendix  A,  on  Domicil,  p.  181,  &c.  to  p.  209. 


64  CONFLICT    OF   LAWS.  [cH.  IV. 


CHAPTER  IV. 


CAPACITY   OF  PERSONS. 


§  50.  We  now  come  to  the  consideration  of  the  ope- 
ration and  effect  of  foreign  laws,  in  relation  to  persons, 
and  their  capacity,  state,  and  condition.^ 

§  51.  All  laws,  which  have  for  their  principal  object 
the  regulation  of  the  capacity,  state,  and  condition  of 
persons,  have  been  treated  by  foreign  jurists  generally 
as  personal  laws.^     They  are  by  them  divided  into  two 


1  Upon  the  subject  of  this  chapter  the  learned  reader  is  referred  to 
Burge's  Comment,  on  Col.  and  Foreign  Law,  Vol.  1,  P.  1,  ch.  3,  ^  1,  p. 
52,  &c.  ;  Id.  §  2,  p.  92,  &c. ;  Id.  §  3,  p.  101,  and  to  Id.  ch.  4,  p.  113  to 
135.  —  Cujacius  defines  the  condition  of  a  party  thus  ;  Conditio  pro  statu 
accipitur ;  puta,  pater-familias  sit,  an  filius-familias,  servus,  an  liber. 
jEtatem,  valetudinem,  facultates,  mores  non  significat.  Liverm.  Dissert. 
§  26,  p.  38,  cites  Cujacii,  Observ.  Lib.  7,  cap.  36. 

2  See  Saul  v.  His  Creditors,  17  Martin,  R.  569,  296.  —  Boullenois 
enumerates,  as  personal,  all  laws,  which  regard  majority  or  minority, 
emancipation,  interdiction  for  lunacy  or  prodigality,  subjection  of  married 
women  to  the  marital  power,  subjection  of  minors  to  the  power  of  their 
parents  and  guardians,  legitimacy  and  illegitimacy,  excommunication,  civil 
death,  infamy,  nobility,  foreigners  and  strangers,  and  naturalization. 
1  Boullenois,  Observ.  4,  p.  46,  51  ;  Id.  78 ;  Id.  800.  See,  also,  Merlin, 
R6pert.  Statut.  Pothier  enumerates  among  personal  laws,  those  respect- 
ing the  paternal  power,  the  guardianship  of  minors,  and  their  emancipa- 
tion, the  age  required  to  make  a  will,  and  the  marital  authority.  Pothier, 
Cout.  d'0rl6ans,  introd.  ch.  1,  art.  6.  See,  also,  Rodenburg,  De  Div. 
Stat.  tit.  2,  ch.  5,  ^  10;  2  Boullenois,  App.  48.  Le  Brun  enumerates 
among  personal  statutes  those  respecting  majority,  legitimacy,  guardian- 
ship, and  the  paternal  power.  Le  Brun,  Traite  de  la  Communaute,  Liv. 
2,  ch.  3,  ^  5,  n.  25.  See,  also,  Bouhier,  Cout.  de  Bourg.  ch.  23,  ^  64  ; 
1  Boullenois,  ch.  2,  Observ.  5,  p.  74  to  122  ;  1  Burge,  Comment,  on  Col. 
and  For.  Law,  ch.  3,  §  1,  p.  57,  &c. 


CH.  IV.]  CAPACITY    OF  PERSONS.  65 

sorts ;  those  wMch  are  universal,  and  those  which  are 
special.  The  former  (universal  laws)  regulate  univer- 
sally the  capacity,  state,  and  condition  of  persons,  such 
as  their  minority,  majority,  emancipation,  and  power  of 
administration  of  their  own  affairs.  The  latter  (special 
laws)  create  an  ability  or  a  disability  to  do  certain 
acts,  leaving  the  party  in  all  other  respects  with  his 
general  capacity  or  incapacity.^  But,  whether  laws 
purely  personal  belong  to  the  one  class  or  to  the  other, 
they  are  for  the  most  part  held  by  foreign  jurists  to  be 
of  absolute  obligation  everywhere,  when  they  have 
once  attached  upon  the  person  by  the  law  of  his  do- 
micile Boullenois  has  stated  the  doctrine  among  his 
general  principles.  Personal  laws  (says  he)  affect  the 
person  with  a  quality,  which  is  inherent  in  him,  and 
his  person  is  the  same  everywhere.  Laws  purely  per- 
sonal, whether  universal  or  particular,  extend  them- 
selves everywhere ;  that  is  to  say,  a  man  is  everywhere 
deemed  in  the  same  state,  whether  universal  or  parti- 
cular, by  which  he  is  affected  by  the  law  of  his  domicil. 
Ces  loix  ijersonelles  affectent  la  iiersonne  cViine  qualite,  qui 
lid  est  inherente,  et  la  personne  est  telle  partoiit?     And 


1  See  Henry  on  Foreign  Law,  2,  3  ;  1  Froland,  Mem.  ch.  5,  p.  81. 

2  How  extensively  this  rule  may  operate,  may  be  readily  understood  by 
simply  referring  to  the  different  ages  at  which  majority  is  attained  in  dif- 
ferent countries.  By  the  civil  law  full  age  was  not  attained  until  twenty- 
four.  By  the  old  law  of  France  ihe  age  of  majority  was  twenty-five.  By 
the  custom  of  Normandy  the  age  of  majority  was  twenty  ;  by  the  law  of 
Spain  the  age  of  twenty-four  ;  by  that  of ; Holland  twenty-five.  In  some 
parts  of  Germany  the  majority  is  attained  at  twenty-one ;  in  others  at 
eighteen  ;  in  others  at  twenty-five  ;  in  Saxony  at  twenty-one ;  and  so  in 
England,  Scotland,  Ireland,  and  the  United  States  of  America.  The 
present  law  of  France,  for  all  purposes  except  marriage,  adopts  the  same 
age  ;  but  for  marriage  the  rule  is  stiir  twenty-five.  1  Burge,  Comm.  on 
Col,  and  For.  Law,  P.  1,  ch.  4,  p.  113,  114,  115  ;  post,  ^  66,  note,  ^  90. 

3  1  Boullenois,  Prin.  G6n.  p.  4. 

6* 


66  CONFLICT    OF   LAWS.  [CH.   IV. 

again,  —  Les  loix  piires  persojtnelies,  soit  personnelks  imi- 
verselles,  soit  personnelles  jpatiiculwres,  se  portent  par  tout ; 
c^est  a  dire,  que  Vhomme  est  partotit  de  Vetat,  soit  universel, 
soit  payiiciilier,  dont  sa  personne  est  affectee  par  la  hi  de 
son  domicil}  JOetat  personnel  du  domicil  se  forte  partout. 
Hdbilis  vel  inhaUUs  in  loco  domicilii,  est  kahilis  vel  inhahilis 
in  omni  loco?  Rodenburg  says  ;  Whenever  inquiry  is 
made  as  to  the  state  and  condition  of  a  person,  there  is 
but  one  judge,  that  of  his  domicil,  to  whom  the  right 
appertains  to  settle  the  matter.  Cum  de  statu  et  condi- 
tione  Jiominwii  quceritiir,  uno  solummodo  judid,  et  quidem 
domicilii,  universum  in  Hid  jus  sit  attnbutum?  Hence 
(says  Hertius)  the  state  and  quality  of  a  person  are 
governed  by  the  law  of  the  place  to  which  he  is  by  his 
domicil  subjected.  Whenever  a  law  is  directed  to  the 
person,  we  are  to  refer  to  the  law  of  the  place  to  which 
he  is  personally  subject.  Ilinc  status  et  qualitas  persona 
regittir  a  legihus  loci,  cui  ipsa  sese  per  domiciliiim  suhjecit.^ 
Quando  lex  in  personam  dirigitur,  respiciendum  est  ad  leges 
illius  civitatis,  qim  personam  Jidbet  siibjectam.^ 

§  51  a.  Froland,  Bouhier,  Rodenburg,  Paul  Voet,  Po- 
thier,  and  others,  lay  down  a  similar  rule.^    Froland 


1  1  Boullenois,  Prin.  Gen.  10,  18,  p.  4,  6  ;  Observ.  4,  10,  12,  14,  46. 
8  Boullenois,  Dissert,  sur  Quest,  de  Contrariety  des  Loix,  edit.  1732, 
Disc.  Prel.  p.  20,  Regie,  10. 

3  Rodenburg,  De  Div.  Stat.  tit.  1,  ch.  3,  §  4  to  §  10  ;  1  Boullenois, 
p.  145,  146  ;  Id.  Obs.  14,  p.  196  ;  2  Boull.  App.  p.  789. 

4  Hertius,  De  CoUis.  Leg.  ^  4,  n.  5,  p.  122  ;  Id.  p.  173,  174,  edit. 
1716. 

5  Id.  ;  Id.  n.  8,  p.  123  ;  Id.  n.  12,  p.  128  ;  Id.  p.  175  ;  Id.  p.  182,  edit. 
1716. 

C  1  Froland,  M6m.  de  Statut.  ch.  7,  ^  2,  p.  156  ;  Id.  vol.  2,  ch.  33,  §  8, 
9,  10,  p.  1574  ;  Bouhier,  Cout.  de  Bourg.  ch.  23,  ^  92,  p.  461  ;  Id.  ch. 
24,  ^  11,  p.  463  ;  Id.  ch.  22,  §  5  to  ^  11,  p.  418  ;  Voet,  De  Statut.  §  4, 
ch.  2,  n.  0,  p.  137,  138  ;  Henry  on  For.  Law,  ch.  4,  p.  34  ;  Pothier, 


CH.  IV.]  CAPACITY    OF   PERSONS.  67 

lays  down  the  doctrine  in  the  following  broad  terms. 
A  personal  statute  not  only  exerts  its  authority  in  the 
place  of  the  domicil  of  the  party ;  hut  its  provisions 
follow  the  party,  and  accompany  his  person,  in  every 
place,  where  he  goes  to  contract ;  and  it  extends  over 
all  his  property  (Mens)  under  whatever  customs  it  may 
be  situated  ;  M  qiHelle  infliie  siir  tons  ses  Mens  sons  qiiel- 
ques  coutumes,  qiCUs  soient  assis}  Bouhier  adopts  the  very 
rule  of  BouUenois  ;  Qiiand  le  statiit  ijcrsonml  du  domicil 
est  en  cmiciirrence  avee  le  statiit  personnel  de  la  situcdion  des 
Mens  celid  du  domicil  dont  Vemporter  sur  celid  de  la  situation 
des  liens?  And  again,  he  says ;  It  is  necessary  constantly 
to  hold,  that  the  capacity  or  incapacity,  which  the  law 
of  the  domicil  has  impressed  upon  the  person,  should 
follow  the  person  into  all  places ;  so  that  it  shall  be- 
come utterly  impossible,  that  a  person,  being  incapable 
in  the  place  of  his  residence,  should  go  to  contract  in 
another  place  where  he  would  have  been  capable,  if  he 
had  been  domiciled  there.  Il  faiit  done  tenir  pour  con- 
stant, que  la  capacite  on  Vincapacite,  que  la  loi  du  domicil 
a  imprimee  sur  la  p)ersonne  la  suit  en  tons  lieux.  En  sorte 
que  ce  seroit  inutilement,  cque  etant  incapaUe  au  lieu  de  sa 
residence,  elk  voiidroit  alter  contraeter  dans  nn  endroit,  ou 
il  auroit  ete  capalle,  si  elle  y  avoit  ete  domieiliee?  Abra- 
ham a,  Wesel  uses  language  equally  strong  ;   Quoties- 


Introd.  Gen.  Cout.  d'0rI6ans,  ch.  1,  art.  7  ;  1  Hert.  Opera,  De  Coll.  §  4, 
n.  5,  p.  121,  n.  8,  p.  123  ;  Id.  p.  172,  173,  175,  edit.  1716.  See  also  Foe- 
lix,  Revue  Etrang^re  etFrancaise,  &c.,  1840,  Vol.  7,  p.  200  to  p.  216. 
Since  the  present  work  was  in  the  press,  I  have  for  the  first  time  seen 
these  Dissertations  of  Mr.  Foelix,  and  I  shall  gladly  avail  myself  of  his 
learned  labors. 

1  1  Froland,  Mem.  ch.  7,  ^  2,  p.  156  ;  Id.  ch.  5,  ^  4,  p.  89  ;  Tost,  ^  84. 

2  Bouh.  Cout.  de  Bourg.  ch.  23,  ^  91  to  96,  p.  461  ;  Id.  ch.  22,  ^  4  to 
14,  ^  19. 

3  Bouhier,  Cout,  de  Bourg.  ch.  24,  ^  11,  p.  463. 


68  CONFLICT   OF  LAWS.  [CH.  IV. 

cunqiie  mini  de  hdbilitate  atque  inhabilitate  personam  qiiceri- 
tur,  toties  domicilii  leges  et  statida  siKctanda,  ut  qiiocumqiie 
persona  alecd,  id  jus  sit,  quod  judex  domicilii  stcduerit  ;  ^ 
and  he  applies  the  rule  equally  to  movable  and  immov- 
able property.^  Pothier  says,  that  personal  statutes 
exert  their  power  upon  the  persons  in  relation  to  their 
property  (Mens)  wherever  it  may  be  situated ;  Au  reste, 
ces  stcdids  inrsonmls  exercent  leiir  empire  sur  les  jjcrsonnes 
par  rappoH  a  tons  lair  hieiis,  qiielqiie  part,  qu'ils  soient 
sitiies,^  Rodenburg  says ;  Quociimqiie  modo  se  casus 
hahierit,  contrahentium  erit  respicere  ad  sumn  cujusque 
domicilii  locum,  impressam  ibidem  personce  qiialitatem,  aid 
adeptam  domi  conditionem  cujus  ignanis  non  sit  oportet, 
qui  cum  alio  void  conirahere.  Quare  HoUandice,  incola  ma- 
jor Ultrajecti,  minor  apud  suos,  contraUt  apud  nostrates 
invalid^.  Contra  JJltraj ectinus  lege  domicilii  major  contra- 
Ut in  HollandicB  efficaciter  ;  ut  maxime  ex  more  regionis 
istius  rerum  suanmi  necdum  hahentur  compos."^  Stock- 
mannus  holds  equally  strong  language;  JJnde  recte, 
eum,  qui  inhaUlis  est  in  uno  loco,  ctiam  in  alio  inhaUlem 
cemeri  ;  et  si  cditer  statuamus,  incertus  et  variiis  erit  per- 
sonarum  status  ;  cum  tamen  idi  personam  idique  candem, 
ita  qualitatem  personce  inha^rentem,  velut  ejus  accidem, 
uhique  uniformem  esse  convenicd?  Merlin  has  expressed 
it  in  equally  comprehensive  terms/  saying,  that  the 


1  Wesel,  Com.  ad  Novell.  Constit.  Ultraj.  art.  18,  ^  23,  p.  169,  170. 

2  Id.  §  25,  27,  p.  170,  173  ;  Liverm.  Diss.  ^55,  p.  56. 

3  Pothier,  Introd.  G6n.  aux  Cout.  d'Orleans,  ch.  1,  art.  7  ;  Post,  §  69. 
'1  Rodenburg,  De  Diversit.  Statut.  tit.  2,  ch.  1,  §  2  ;  2  Boullenois,  App. 

p.  11. 

5  Stockmann.  Decis.  125,  ^  6,  p.  262,  cited  also  1  Boullenois,  Observ. 
6,  p.  131  ;  Liverm.  Dissert.  ^  22,  p.  35.  See  also  Abraham  a  Wesel, 
Comment,  ad  Nov.  Constit.  Ultraject  art.  13,  n.  24,  25,  p.  170  to  p.  172; 
Liverm,  Dissert.  §  55,  p.  56. 

6  Merlin,  Repert.  Stat.  ;  Id.  Majorite,  ^  5  ;  Id.  Autorisation  Maritale, 


II.   IV.]  CAPACITY   OF   PERSONS.  69 

law  of  the  clomicil,  as  to  majority  or  minority,  governs 
in  respect  even  to  property  (Mens)  situate  in  another 
territory.^ 

§  51, 1}.  Paul  Yoet,  on  the  other  hand,  speaks  in  far 
more  qualified  language,  and  lays  down  several  rules 
on   the   subject.     (1.)  That   a   personal   statute   only 
affects  the  subjects  of  the  state  or  territory  wherein  it  is 
promulgated,  and  not  foreigners,  although  doing  some 
business  there.     Stakdiim  ^^ersoncUe  tantwn  afficit  siihditos 
territorii,  uU  staMum  conditmn  est  ;  non  aidem  foremes, 
lied  ihidem  cdiqidd  agentesr     (2.)  That  as   a  personal 
statute  does  not  affect  a  person  out  of  the  territory,  it 
cannot  therefore  be  reputed  to  be  the  same  without  the 
territory,  as  it  is  within.     SMidimi  personale  non  afficit 
persotiam  extra  territoriimi ;  sic  id  pro  tali  non  repidetur 
extra  territoriim,  qiialis  erat  intra?     (3.)  That  a  personal 
quality  cannot  be  added  out  of  the  territory  to  a  person 
not  a  subject.     Personalis  qiialitas  non  potest  extra  tcrri- 
torimn  addi  personce  non  siibJectcB.^     (4.)  A  personal  sta- 
tute accompanies  the  person  everywhere,  in  respect  to 
property  {Mens)  situate  within  the  territory  of  the  state, 
where  the  person  affected  by  it  has  his  domicil.     Statu- 
timi  personate  uhique  hconmi  personam  comitatiir,  in  ordine 
ad  hona  intra  territoriimi  statuentis  sita,  uU  persona  qfccta 
domiciliwn  lialet?    We  shall  also  presently  see,  that  he 
distinguishes  between  the  effect  of  a  personal  statute 
upon  movable,  and  its  effect  upon  immovable  property.^ 

^10.  —  The  like  rule  is  maintained  by  Burgundus,  Stockmans,  and 
D'Argentr6,  as  to  personal  property  and  covenants.  See  Liverm.  Diss, 
p.  34,  35,50  ;  Merlin,  R6pert.  Majorite,  ^  5  ;  Id.  Autorisation  Maritale, 
§  10. 

1  Merlin,  R6peit.  Majority,  ^  5,  edit.  Brux.  1827,  p.  189. 

2  Voet,  de  Stat.  ^  4,  ch.  2,  p.  137,  edit.  1661. 

3  Ibid.  4  Id.  p.  138. 
5  Id.  p.  138.  6  Post,  ^  52. 


70  CONFLICT   OF   LAWS.  [CH.  IV. 

§  52.  The  result  of  the  doctrine  maintained  by  the 
jurists  above  named,  except  Paul  Voet,  is,  that  a  per- 
son, who  has  attained  the  age  of  majority  by  the  law 
of  his  native  domicil,  is  to  be  deemed  everywhere  the 
same,  of  age  ;  and,  on  the  other  hand,  that  a  person 
who  is  in  his  minority  by  the  law  of  his  native  domicil, 
is  to  be  deemed  everywhere  in  the  same  state  or  condi- 
tion.^ Thus,  for  example,  if  by  the  law  of  the  place 
of  his  original  domicil  a  person  cannot  make  a  will  of 
his  property,  before  he  is  twenty-one  years  of  age,  he 
cannot,  if  under  that  age,  make  a  valid  will,  even  of 
such  property  as  is  situate  in  a  place,  where  the  law 
allows  persons  of  the  age  of  fourteen  years  to  make  a 
will  of  the  like  property.^  So,  if  by  the  law  of  her 
original  domicil  a  married  woman  cannot  dispose  of  her 
property,  except  with  the  consent  of  her  husband,  she 
is  equally  prohibited  from  disposing  of  her  property 
situate  in  another  place,  where  no  such  consent  is  requi- 
site.^ Many  jurists  apply  this  doctrine  indiscriminately 
to  movable,  as  well  as  to  immovable  property.  Thus, 
BouUenois  says  ;  "  If  a  man  has  immovable  property, 
situate  in  a  place,  where  the  age  of  majority  is  fixed 
at  twenty-five,  and  by  the  law  of  his  own  domicil  he  is 
of  age  at  twenty,  he  may  at  twenty  sell  or  alienate 
such  immovable  property.  On  the  other  hand,  if  by 
the  law  of  the  place,  where  the  immovable  property  is 


1  1  Boullenois,  p.  103,  &c.  ;  1  Burge,  Comment,  on  Col.  and  For. 
Law,  P.  1,  ch.  4,  p.  113  to  p.  135. 

2  Pothier,  Cout.  d'Orleans,  ch.  1,  art.  7  ;  1  Boullenois,  Prin.  Gen-  19, 
p.  7  ;  Id.  Observ.  16,  p.  205  ;  1  Froland,  M6m.  ch.  7,  p.  156  ;  Bouhier, 
Cout.  de  Bourg.  ch.  22,  ^  5  to  ^  11  ;  ch.  24,  ^  7  to  ^  13  ;  Merlin,  R6pert. 
Majorite,  ^  5  ;  Id.  Autorisation  Maritale,  ^  10  ;  Rodenburg,  De  Divers- 
Statut.  tit.  2,  ch.  1,  §  1  ;  2  Boullenois,  App.  p.  11. 

3  Ibid.  ;  Henry  on  Foreign  Law,  ^  1,  p.  31. 


CH.  IV.]  CAPACITY   OF  PERSONS.  ,     71 

situate,  he  is  of  age  at  twenty,  but  Iby  the  law  of  his 
domicil  not  until  twenty-five,  he  cannot  sell  or  alienate 
such  property,  until  the  age  of  twenty-five."  ^  But 
other  jurists  distinguish  between  movable  and  immova- 
ble property,  applying  the  law  of  situs  to  the  latter, 
and  the  law  of  the  domicil  to  the  former.^  Paul  Voet 
insists  throughout  upon  this  distinction  ;  and  holds, 
that  no  personal  statute  extends  to  immovable  property 
situate  elsewhere.  JVon  tamen  statutum  ijersonale  sese 
rcgiilariter  extendet  ad  hona  immoUlia,  aliU  sita?  But  he 
admits,  that  such  a  statute  will  apply  to  movable  pro- 
perty, upon  the  ground,  that,  wherever  it  may  be  situ- 
ate, it  follows  the  domicil  of  the  owner.  Qiiin  tamcn 
ratione  moUlium,  iibicunqiie  sitonmi,  domicilium  seu  perso- 
nam domini  seqiiajmir,  ut  tamen  spectentitr  hca,  quo  desti- 
nata,  nullus  iverit  inficias  ;  idqiie  pyropter  expressos  textus 
juris  civilis,  qiiihis  moUlia  certo  loco  non  alligantur,  verimi 
secundum  juris  iniellectmn  personam  comitari,  eique  adhcerere 
judicantur  ;  id  quod  etiam  mores  uUque  loconim  sequimtitrJ^ 
Burgundus  holds  the  same  opinion ;  Conseqiienter  ca, 
qucB  sunt  personalia,  una  cum  'persona  circumferuntur,  quo- 
ciimque  loco  se  transtulerit,  et  per  universa  territoria,  vires- 
que  et  effectum  porrigunt.  Realia  situm  rerum  sic  spectant, 
ut  territorii  limites  non  excedant ;  quia  relus  ipsis  sunt 
affixaP    Many  other  jurists  maintain  the  same  distinc- 


1  Boullenois,  Dissert,  des  Quest,  do  la  Contrar.  des  Loix,  Quest.  P=  p. 
19,  20  ;  Basnage,  Coutum.  de  Normand.  torn.  2,  art.  431,  p.  243.  See 
also  Merlin,  R6pert.  Majority,  ^  4,  5. 

2  Voet,  Burgundus,  Stockmans,  and  Peckius,  cited  in  Merlin,  Repert. 
Majority,  ^  5,  p.  189,  edit.  1827  ;  Ante,  ^  52  a. 

3  P.  Voet,  ad  Statut.  ^  4,  ch.  2,  n.  6,  p.  138,  edit.  1661  ;  Id.  ch.  3, 
n.  4,  p.  148. 

4  P.  Voet,  ad  Statut.  §  4,  ch.  2,  n.  9,  p.  139,  140,  edit.  1661. 

5  Burgundus,  Tract.  1,  ^  3,  p.  15. 


72    .  CONFLICT    OF   LAWS.  [CH.  IV. 

tion  ;  ^  but  it  needs  not  be  here  further  insisted  on,  as 
it  will  hereafter  come  more  fully  under  our  considera- 
tion. 

§  53.  The  doctrine,  as  to  the  nature  and  operation  of 
personal  statutes,  thus  asserted  by  foreign  jurists,  even 
with  the  distinction  in  its  application  between  movable 
property  and  immovable  property,  is  found  attended 
with  many  difficulties ;  and  many  of  these  jurists  are 
compelled  to  make  exceptions  in  its  application,  which 
go  far  to  limit,  if  not  to  impair,  its  real  force  and  effi- 
ciency.^ Indeed,  the  language  held  by  some  of  them 
on  this  subject  has  not  always  such  a  precision,  as  to 
its  actual  extent  and  operation,  as  to  free  the  mind 
from  all  doubt  in  regard  to  the  true  meaning.  Merlin 
says ;  ^  "  The  law  of  the  domicil  governs  the  state  of 
the  person  and  his  personal  capacity  or  incapacity.  It 
also  governs  personal  actions,  movables,  and  movable 
effects,  in  whatever  place  they  may  in  fact  be  situated. 
The  power  of  the  law  of  the  domicil  extends  ever}^- 
where,  to  every  thing  within  its  reach  or  jurisdiction ; 
so  that  he,  who  is  of  a  majority  by  the  law  of  his  domi- 
cil, is  of  the  age  of  majority  everywhere.  The  law  of 
the  place  where  the  property  (Mens)  is  situate,  regulates 
the  quality  and  disposition  of  it.  When  the  law  of 
the  domicil,  and  that  of  the  situation,  (situs)  are  in 
conflict  with  each  other,  if  the  question  is  respecting 
the  state  and  condition  of  the  person,  the  law  of  the 
domicil  ought  to  prevail ;  if  it  is  respecting  the  dispo- 


'  See  J.  Voet,  Stockmannus,  and  Peckius,  cited  Post,  ^  54,  and  ] 
Boullenois,  Ohserv.  4,  p.  57  ;  Id.  Obs.  G,  p.  131  ;  Sandius,  Lib.  4,  tit. 
8,  Definit.7,  p.  104. 

2  See  Livermore,  Diss.  p.  62  to  106. 

3  Merlin,  R6pert.  Statut.  See  also  Id.  Majority,  ^  5  ;  Id.  Autorisation, 
Maritale,  «^  10. 


CH.  IV.]  CAPACITY    OF   PERSONS.  73 

sition  of  property,  (hiens,)  the  law  of  the  place,  where 
they  are  situate,  is  to  be  followed."  ^  "If  several  real 
statutes  are  found  in  conflict  with  each  other,  each  one 
has  its  own  effect  upon  the  property  {hiens)  which  it 
governs."  ^  Now,  this  language  of  Merlin  is  in  some 
parts  sufiiciently  broad  to  cover  movable  property,  as 
well  as  immovable  property ;  and  yet  it  is  very  clear, 
that  the  disposition  of  movable  property,  and  the  capa- 
city to  dispose  of  it,  are  by  many  foreign  jurists,  and 
by  Merlin  himself,  held  to  be  governed  by  the  law  of 
the  domicil  of  the  owner,  according  to  the  maxim,  that 
movables  follow  the  person;  Mobilia  seqiiimtiir  perso- 
nam? What,  perhaps.  Merlin  intends  here  to  assert, 
may  be,  that  where  a  person  is  incapable  by  the  law  of 
his  domicil,  he  cannot  dispose  of  any  of  his  property 
situate  elsewhere,  the  incapacity  extending  even  to 
places  where  he  is  not  domiciled,  and  where,  by  the 
local  law,  he  would  otherwise  have  capacity  to  dispose 
of  it.  But  that,  where  a  person  is  capable  by  the  law 
of  his  domicil,  and  the  question  does  not  respect  his 
personal  capacity  to  dispose  of  property,  but  only  the 
extent  to  which  it  may  be  exercised  by  persons  who 
are  capable,  there  the  law  of  the  place,  where  it  is 
situate,  will  govern.^  Yet  he  would  seem  also  to  inti- 
mate, that  there  is  or  may  be  some  distinction  between 
personal  property  and  real  property,  (between  movables 


1  Merlin,  Repert.  Statut.  See  also  Id.  Majority,  §  5  ;  Id.  Autorisation, 
Maritale,  ^10. 

2  Ibid.  3  Ibid. 

4  Pothier,  Cout.  d'Orl«ians,  ch.  1,  art.  7;  1  Boullenois,  Prin.  Gen.  16, 
p.  7  ;  Id.  Observ.  19,  p.  338,  &c.  ;  Rodenburg,  ch.  3,  ^  4,  9,  10,  p.  7  to 
9  ;  Id.  ch.  2,  p.  6  ;  Voet,  de  Stat.  ^  7,  ch.  2,  p.  125,  ^  8  ;  Pothier,  De 
Choses,  P.  2,  §  3  ;  Livermore,  Dissert.  82. 

CONFL.  7 


74  CONFLICT    OF   LAWS.  [CH.    IV. 

and  immovables,)  as  to  the  effect  of  the  operation  of  the 
lex  domicilii} 

§  54.  In  another  place,  Merlin  lays  down  the  rule, 
that  a  law,  which  declares  a  person  a  major  or  a  minor, 
who  is  born  within  its  reach  of  jurisdiction,  is  personal, 
and  extends  to  property  (hiens)  situate  out  of  the  terri- 
tory ;  or,  in  other  words,  that  a  statute  respecting  major- 
ity, full  and  entire,  is  personal  and  extends  to  property 
ihiens)  situate  out  of  the  territory.  Le  statiit  de  la  majo- 
rite  pleine  ct  entiere  est  personnely  et  ietend  aux  Mens  siiues 
hors  de  son  ierritoire?'  Thus,  if  by  the  law  of  the  place, 
where  a  person  has  his  domicil,  he  is  of  majority  at  the 
age  of  twenty,  and  has  the  faculty  of  disposing  of  his 
property,  situate  there,  the  same  faculty  will  extend  to 
his  property,  situate  in  another  country,  where  he 
would  not  be  capable  of  alienating  until  he  was  twenty- 
five  years  of  age.  And  he  applies  this  doctrine  equally 
to  movables  and  immovables.^  He  admits,  that  the 
Voets,  Burgundus,  Stockmans,  and  Peckius,  while  they 
deem  such  a  law  to  be  personal,  insist,  that  it  does  not 
extend  to  the  disposal  of  immovables,  situate  in  a 
foreign  country,  where  a  different  rule,  as  to  capacity 
or  majority  prevails.'*     Merlin  in  another  place   says  j 


1  See  Merlin,  Repert.  Majoiit6,  \  5,  p.  188,  189,  edit.  Brux.  1827. 

2  Ibid.  3  Ibid. 

4  See  Merlin,  Rupert.  Majority,  ^  5,  edit.  Brux.  1827,  p.  188  ;  Id.  Au- 
torisation  Maritale,  ^  10.  I  do  not  find  the  citations  from  some  of  these 
authors  accurately  given  by  Merlin.  But  I  believe,  that  the  following 
will  be  found  to  verify  his  statement.  J.  Voet,  ad  Pandect,  Lib.  4,  tit.  4, 
n.  8,  Lib.  23,  lit.  2,  n.  60,  n.  136  ;  P.  Voet,  ad  Statut.  %  4,  ch.  3,  n.  10, 
p.  153  ;  Burgundus,  Tract  1,  n.  5,  6,  7,  8 ;  Peck.  De  Testam.  Conjug. 
Lib.  4,  ch.  28,  Introd.  n.  5,  6,  7  ;  Stockmans,  Decis.  125,  ^  6,  9,  p.  262, 
263  ;  Christin.  Tom.  2,  Decis.  56,  §  12  ;  Livermore,  Dissert.  §  47  to  52, 
p.  50  to  54.  Immobilia  (says  P.  Voet)  statutis  loci,  ubi  sita  ;  mobilia  loci 
slatutis,  ubi  testator  habuit  domicilium.     P.  Voet  de  Statut.  ^  4,  ch.  3,  n. 


CH.  IV.]  CAPACITY    OF   PERSONS.  75 

"If  the  law  of  the  domicil  declares  a  person  incapable 
to  sell,  aliene,  contract,  or  to  bind  himself  in  any  manner 
to  another,  it  is  impossible,  that  his  immovables,  in 
whatever  country  they  may  be  situated,  can  be  aliened, 
bound,  or  hypothecated  by  him.  Who  has  ever  doubt- 
ed, that  the  interdiction  pronounced  against  a  prodigal, 
or  a  madman,  by  the  judge  of  his  domicil,  was  an  obstacle 
to  the  alienation  of  his  property  (Mens)  which  is  situate 
within  the  reach  of  another  jurisdiction  ?  Who  has  ever 
doubted,  that  the  tutor,  (guardian,)  named  by  the  judge 
of  the  domicil,  has  the  right  to  administer  the  property 
(Mens)  which  is  within  the  territory  of  another  judge?" ^ 
This  is  very  bold  and  uncompromising  language  ;  but 
it  will  be  very  difficult  to  sustain  it  without  many  quali- 
fications. It  may  be  added,  that  the  modern  Civil  Code 
of  France  expressly  declares,  that  the  laws  concerning 
the  condition  and  capacity  of  persons  govern  French- 
men, even  if  residing  in  a  foreign  country.^  In  the 
progress  of  our  inquiries,  it  will  be  found,  that  many 
exceptions  are  admitted  to  exist,  as  to  the  operation  of 
personal  laws,  and  that  the  practice  of  nations  by  no 
means  justifies  the  doctrine  in  the  extent  to  which  it  is 
ordinarily  laid  down  by  many  foreign  jurists. 

§  54  a.  John  Voet,  on  the  other  hand,  is  one  of  the 
few  jurists,  who  insist,  that  personal  statutes  of  aU 
sorts,  respecting  capacity  or  incapacity,  majority  or 
minority,  legitimacy  or  illegitimacy,  have  no  extra- 
territorial operation,  either  directly  or  consequentially. 


10,  p.  153,  edit.  1661.  Again  he  adds;  Quid  circa  successionem.  Spec- 
tabitur  loci  statuta  ubi  immobilium  sita,  non  ubi  testator  moritur.  Id.  §  9, 
ch.  1,  n.  3,  p.  305.  See  1  Burge's  Comment,  on  Col.  and  For.  Law, 
P.  l,ch.  3,  ^  3,  p.  118  to  129. 

1  Merlin,  R6pert.  Autorisation  Maritale,  ^  10,  art.  2. 

2  Code  Civil  of  France,  art.  3  ;  Post,  ^  68. 


76  CONFLICT    OF   LAWS.  [CH.  IV. 

Verlus  est  (says  he)  personalia  non  magis  quam  realia 
territorimn  statuentis  posse  excedere,  sive  diredo,  sive  per 
conseqiientiam}  And  he  goes  on  to  add :  Ita  ncc  ratio 
idla  est,  cur  magis  qiialitas  et  haUlitas  privato  per  statutiim 
data  vel  denegata,  vires  extenderet  per  ea  loca,  in  qidhus 
diversimi  qidd  aid  contrarium  circa  personariim  qiialitatem 
lege  caidiim  est.  Quod,  si  hcec  cidquam  minus  videantur 
siifflcere,  is  velim  mild  rationem  modumve  expediat,  per 
quern  legislator  personam,  domicilii  intuitu  siU  supijositam, 
liahilem  inhaUlenive  ad  actus  gerendos  declarans,  aUerius 
loci  legislatorem,  potestate  parem  cogeret,  id  is  alienis  decre- 
tis  statidisve  pareret,  aid  rata  irritave  haleret,  quce  judex 
domicilii  talia  essejussit  in  persona  domiciliwn,illic  fovente ; 
maxime,  si  fateatur  {id  fateri  necesse  est)  pari  in  parem 
mdlam  competere  cogendi  potestatem.  Exj^onat,  ohsecro, 
prodigo  declarato,  vel  in/amid  notato,  vel  legitimato,  vel  in 
ipso  pidjertatis  tempore  Jiahili  ad  testamentmn  condendum 
declarato  per  magistratum  Hollandum,  ac  JJltrajectmn  se 
conferente  vel  immohilia  possidente  ;  exponat  inqiiam,  qua 
juris  via  magistratus.  Ultrajectinus  adstringi  posset,  id 
istum  rations  honorum,  in  TJltraj ectino  solo  sitorum,pro  tali 
agnosceret ;  adeoqiie  contractus  prodigi  Hollandici  haleret 
irritos ;  dignitates  Hollando  infamato  denegaret ;  succes- 
sionem  in  bona  Trajectina  ad  spuriwn  Hollandum  Icgitima- 
tum  pertinentia,  tanquam  in  legitime  nati  patrimonium, 
pateretur  proximis  dcferri ;  testamentmn  masculi,  ante  an- 
num cetaiis  octavum  decimentum  conditum,  jideret  ratimi 
esse.^ 

§  55.  Hitherto  we  have  been  considering  cases  of 
the  capacity  or  incapacity  of  persons,  arising  from  the 
domicil  of  origin,  where  there  has  been  no  subsequent 


'  Voet.  ad  Pand.  Lib.  1,  tit.  4,  ^  7,  p.  40.  2  Ibid. 


CH.  IV.]  CAPACITY   OF  PERSONS.  77 

change  of  domicil ;  as  to  which,  as  we  have  seen,  the 
doctrine  of  foreign  jurists  is,  that  the  law  of  the  original 
domicil  is  to  prevail,  as  to  such  capacity  or  incapacity ; 
some  of  them  holding,  that  it  applies  to  all  personal 
acts  whatever,  and  to  all  alienation  of  property,  whether 
movable  or  immovable ;  and  others  apply  it  only  to 
personal  acts  and  movable  property,  where  there  is  a 
conflict  of  personal  laws.  But,  suppose,  that  a  person 
has  had  different  domicils,  a  domicil  by  birth,  and  a 
subsequent  domicil  by  choice,  when  he  is  sui  juris, 
which  is  to  prevail,  as  to  his  capacity  or  incapacity  ?  ^ 
Hertius  does  not  hesitate  to  say,  that  the  law  of  the 
new  domicil  is  to  prevail.  Hinc  status  ct  qiialitas  per- 
sonce  regitur  a  legibus  loci,  (says  he,)  ciii  ipsa  sese  per 
domicilium  siibjecit.  Atqtie  inde  etiam  fit,  lit  quis  major  hie, 
alibi,  mutato  scilicet  domicilio,  incipiat  fieri  minor?  The 
like  opinion  appears  to  be  held  both  by  Paul  Voet  and 
by  John  Voet.^  The  former  says ;  Nullum  statiitiim,  sive 
in  rem,  sive  in  personam,  si  de  ratione  juris  civilis  sermo 
instituatur,  sese  extendit  idtra  statuentis  territoriiim.^  The 
latter  holds,  that  the  change  of  domicil  of  a  person 
gives  him  the  capacity  or  incapacity  of  his  new  domicil ; 
so  that,  if  he  is  of  majority  by  the  law  of  the  place  of 
his  birth,  and  he  removes  to  another  country,  by  whose 
laws  he  would,  according  to  his  age,  be  a  minor,  he 


1  See  on  this  subject,  1  Burge,  Comment,  on  Col.  and  For.  Law,  P.  1, 
ch.  3,  ^  3,  p.  102  to  p.  106  ;  Id.  ch.  4,  p.  113  to  p.  125. 

2  1  Hertii  Opera,  \  4,  n.  5,  p.  122  ;  Id.  n.  8,  p.  123  ;  Id.  p.  173,  175, 
edit.  1716. 

3  2  Boullenois,  App.  p.  57;  Merlin,  Repert.  Majority,  §  4,  edit.  Brux. 
1827,  p.  186  ;  Merlin,  Rep.  Retroactif,  ^  3,  art.  9,  n.  3  ;  P.  Voet,  de 
Stat.  ^  4,  ch.  2,  n.  6,  p.  137,  138 ;  Rodenburg,  De  Div.  Stat.  p.  2,  ch.  1, 
§  5,  6  ;  J.  Voet,  ad  Pand.  Lib.  4,  tit.  4,  n.  10  ;  1  Boullenois,  Observ.  4, 
p.  58. 

4  P.  Voet,  ad  Statut.  ^  4,  ch.  2,  n.  7,  p.  138,  edit.  1661. 

7* 


78  CONFLICT    OF   LAWS.  [CH.  IV. 

will  acquire  the  character  of  his  new  domicil.  Si  qids 
ex  lege  domicilii  derelicti  anno  forte  vicesimo  completo  major 
f actus  fuerit,  translato  domicilio  ad  locum  ilium,  ubi  non  nisi 
ahsohdo  viginti  qiiinque  annorum  cv.rricido  quisqiie  major 
liabetur,  non  dulitem  quin  ex  novi  domicilii  jura  incipiat 
iteruni  minorennis  esse? 

§  55  a.  Froland  thinks  this  question  cannot  be  an- 
swered universally;  and  he  puts  a  distinction.     "If" 
(says  he)  "  the  question  is  purely  as  to  the  state  of  the 
person,  abstracted  from  all  consideration  of  property,  or 
subject-matter,  (abstracts  ah  omni  materia  reali^  in  this 
case  the  law,  which  first  commenced  to  fix  his  condi- 
tion, (that  is,  the  law  of  the  domicil  of  his  birth,)  will 
preserve  its  force  and  authority,  and  follow  him  wher- 
ever he  may  go.     Thus,  if  by  the  law  of  the  domicil  of 
his  origin  a  person  attains  his  majority  at  twenty  years, 
and  he  goes  to  reside  in  another  place,  where  the  age 
of  majority  is  twenty-five  years,  he  is  held  to  be  of  the 
age  of  majority  everywhere  ;  and,  notwithstanding  he 
is  under  twenty-five  years,  he  may  in  his  new  domicil 
sell,  aliene,  hypothecate,  and  contract,  as  he  pleases,  and 
vice  versa."  ^     "  But "  (he  adds)  "  when  the  question  is 
as    to  the  ability  or  disability   of  a  person,  who  has 
changed  his  domicil,  to  do  a  certain  thing,  [a /aire  line 
certain  chose,)  then  that,  which  had  governed  his  power, 
(that  is,  the  law  of  his  original  domicil,)  falls,  and  fails 
entirely  in  this  respect,  and  yields  its  authority  to  the 
law  of  his  new  domicil.     Thus,  if  a  married  woman,  by 
the  law  of  the  country  of  her  birth,  is  not  allowed  to 


1  1  J.  Voet,  ad  Pand.  Lib.  4,  tit.  4,  n.  10  ;  Id.  Lib.  5,  tit.  1,  n.  101. 

2  Froland,  M6m.  ch.  7,  ^  13,  14,  p.  171  ;  Post,  ^  138,  note.  See  2  Boul- 
lenois,  Obs,  32,  p.  7  to  p.  11;  Bouhier,  Cout  de  Bourg.  ch.  22,  ^  4  to 
§  10. 


CH.  IV.]  CAPACITY    OF    PERSONS.  79 

pass  property  by  will,  without  the  consent  of  her  hus- 
band, and  she  acquires  a  new  domicil  in  another  coun- 
try, where  no  such  restriction  exists,  she  has  full  liberty 
to  dispose  of  her  property  in  the  latter  country  by  will, 
without  the  consent  of  her  husband ;  and  vice  versa} 
This  is  a  very  nice,  if  it  be  not  in  many  cases  an  evan- 
escent, distinction ;  and  Froland  admits,  that  a  different 
doctrine  is  held  by  many  jurists.^  But  he  is  not  singu- 
lar in  his  opinion  of  the  value  and  importance  of  this 
distinction.^  BouUenois  has  given  to  it  a  qualified  sanc- 
tion.^ Bouhier  also  cites  the  same  distinction  with  ap- 
probation, declaring  it  to  be  judicious  j  and  he  insists, 
that  in  case  of  a  transfer  of  the  domicil,  the  law  of  the 
original  domicil  ought  in  all  cases  to  regulate  the  per- 
sonal capacity ;  and  he  enlarges  on  the  subject  with 
much  ability.^ 

§  56.  On  the  other  hand,  Burgundus  does  not  hesi- 
tate to  hold,  that  the  law  of  the  new  or  actual  domicil 
ought  to  prevail.  After  citing  the  opinion  of  Baldus 
and  Gail  and  Imbertus,  that  the  state  of  the  person  is 
to  be  decided  by  the  place  of  his  domicil ;  Ideo,  si  sta- 
tus personce  inspici  deheat,  diimtaxat  rationem  haheri  Baldus 
existimat,  cujus  opinionem  Andreas  Gail  et  Imlertus  am- 

1  1  Froland,  M6m.  ch.  7,  ^  15,  p.  172  ;  Post,  §  138,  note. 

2  Ibid.  BouUenois  remarks  on  this  distinction  of  Froland,  that  it  con- 
tains some  truth  mixed  up  with  much  obscurity,  and  embarrassed  with 
ideas,  liable  to  contradiction,  without  being  answered.  2  BouUenois,  Ob- 
serv.  32,  p.  8,  9. 

3  See  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  1,  2,  3,  4,  tit.  3,  ch.  1,  2,  3, 
4,  tit.  4,  ch.  1,  2,  3,  4  ;  2  BouUenois,  App.  p.  1  to  p.  33  ;  Id.  p.  71  to 
p.  79  ;  Id.  p.  84  to  p.  95  ;  2  BouUenois,  ch.  1,  Obs.  32,  p.  1  to  p.  53  ;  Mer- 
lin,  Rupert.  Effet  Retroactif,  ^  3,  p.  2,  art.  5,  n.  3,  edit.  Brux.  1827, 
p.  18  to  p.  15  ;  Id.  Majority,  \  4,  p.  186,  187. 

4  2  BouUenois,  Observ.  32,  p.  7  to  p.  11. 

5  Bouhier,  Cout.  de  Bourg.  ch.  22,  §  4  to  §  10;  Id.  §  22,  cited  Merlin, 
Rupert.  Autorisation  Maritale,  §  10,  art.  4,  edit.  Brux.  1827,  p.  243. 


80  CONFLICT   OF   LAWS.  [CH.  IV. 

plediintiir  ;  adeo  ego,  (he  adds,)  nid  ex  privilegio  vel  longk- 
mio  usu  aliud  sit  introductum  Proinde  ut  sciamus  uxor  in 
potestate  sit  mariti  necne,  qua  estate  minor  contraliere  posset, 
et  ejusmodi,  respicere  oportet  ad  legem  cujiisque  domicilii, 
Hwc  enini  imprimit  qualitatem  personce,  atque  adeo  naturam 
ejus  afficit,  ut  quocumque  terrarum  sit  transitura,  incapaci- 
tatem  domi  adeptam  non  aliter  qiiam  cicatricam  in  corpore 
foras  circumferat.  Consequenter  dicemus  ;  si  inutaverit  do- 
micilium persona,  novi  domicilii  conditionem  induere.^  Ro- 
denburg  is  of  the  same  opinion,  upon  the  ground,  that 
the  state  and  condition  of  the  person  is  wholly  govern- 
ed by  the  law  of  his  actual  domicil ;  and  when  that  is 
changed,  his  state  and  condition  change  with  it ;  Perso- 
nce enim  status  et  conditio  cum  tola  regatur  a  legihus  loci, 
cui  ilia  sese  per  domiciliim  suhdiderit,  utique  mutato  domici- 
lio,  mutari  et  necesse  est  personce  conditionem.^  And  he  ap- 
plies the  rule  indiscriminately  to  the  case  of  minors  and 
to  the  case  of  married  women.^  D'Argentre  is  also  of  the 
same  opinion,  and  says  ;  Quotiescunque  de  haUlitate  ant  in 
habilitate  personam  quwratitr,  toties  domicilii  leges  et  statuta 
spectanda.  Ratio  est,  quia  He  dbstractu  de  haUlitate  'per- 
sona, et  universali  ejus  statu  quceratur,  ideoque  personce  a 
foro  domicillii  afficiatur.  Nam  originis  locus  nusquam  in 
foro  co?isiderationem  hahet,  cum  aliud  domicilium  prohoniturJ^ 


1  Burgundus,  Tract  2,  n.  5,  6,  7 ;  post,  ^  140  a.  Cited  also  in  Merlin, 
R6pert.  Effet  Rectroactif,  ^  3,  p.  2,  art.  5,  p.  14,  Brux.  edit.  1827. 

2  Rodenburg,  De  Div.  Stat.  tit.  2,  P.  2,  ch.  1,  n.  3  ;  2  Boullenois,  Ob- 
serv.  32,  p.  2,  5,  7  ;  Id.  Appx.  p.  56,  57 ;  post,  ^  71. 

3  Rodenburg,  De  Div.  Stat.  tit.  2,  P.  2,  ch.  1  ;  Id.  n.  5,  6  ;  2  Boulle- 
nois, Observ.  32,  p.  2,  5,  7,  8  ;  Id.  Appx,  p.  56,  57  ;  post,  ^  71. 

<  D'Argentr6,  De  Leg.  Briton,  art.  218,  n.  47,  49  ;  1  Boullenois,  Obs. 
4,  p.  53  ;  post,  ^  84.  Yet,  though  the  language  of  D'Argentr6  is  thus 
explicit,  Bouhier  seems  to  suppose,  that  he  aided  his  own  opinion,  because 
he  has  added  in  another  place  :  Affecta  quocunqe  modo  persona  domicilii 
lege,  aut  jure,  eo  perpetuo  sic  tenetur,  ut  ne  ulla  mutations  loci  sese  pos- 


CH.  IV.]  CAPACITY    OF   PERSONS.  81 

§  57.  Boullenois  (whose  opinions  will"  be  stated  more 
fully  hereafter)  ^  admits  the  general  principle  to  be,  as 
Rodenburg  states  it,  and  asserts,  that  the  whole  world 
acknowledges,  that  the  state  of  the  person  depends  on 
his  actual  domicil,  and  that  the  natural  consequence  is, 
that  if  a  person  changes  his  domicil,  and  the  law  of  the 
new  domicil  is  contrary  to  that  of  the  old  one,  the  state 
and  condition  of  the  person  change  accordingly.^     But 
then  he  insists,  that  it  is  necessary  to  make  a  distinc- 
tion between  the  states  and  conditions  of  persons,  which 
arise  from  laws  {droits)  founded  in  public  reasons,  admit- 
ted by  all  nations,  and  which  have  a  cause  absolutely 
unconnected  with  domicil,  so  that  the  moment  a  man  is 
affected  with  these  states  and  conditions,  the  original 
domicil  not  having  any  influence  upon  them,  the  new 
domicil  ought  not  to  have  any,  but  merely  the  public 
reasons,  superior  to  those  of  domicil,  to  which  all  na- 
tions pay  respect  J   and  other  subordinate  states  and 
conditions,  which  are  in  truth  founded  in  public  laws, 
{droits  publics,)  but  for  one  nation  only,  or  for  certain 
provinces  of  that  nation.^     Among  the  former  class  he 
enumerates  interdiction,  or  prohibition  to  do  acts,  by 
reason  of  insanity,  or  of  prodigality,  emancipation  by 
royal  authority,  legitimacy  of  birth,  nobility,  infamy, 
&c.     These,  he  contends,  are  never  altered   by  any 
change  of  domicil ;  but  that  having  at  first  fixed  the 
condition  of  the  person,  the  change  of  domicil  does  not 


sit  exercere.  Bouhier,  Cout.  de  Bourg.  ch.  22,  §  9.  But  it  is  plain,  that 
D'Argentr6  is  here  speaking  of  a  mere  change  of  place,  without  a  change 
of  domicil.     D'Argentr6,  de  Leg.  Briton,  art.  218,  §  13,  p.  G03. 

1  Post,  §  71. 

2  2  Boullenois,  Observ.  32,  p.  10,  13. 

3  2  Boullenois,  Observ.  32,  p.  10,  11,  13,  19  ;  post,  ^  71. 


82  CONFLICT    OP    LAWS.  [CH.  IV. 

cause  them  to  cease.^  Among  the  latter  class  he  enu- 
merates the  community  of  property  between  husband 
and  wife ;  the  state  of  the  husband,  as  to  the  marital 
power ;  the  state  of  the  father,  as  to  real  rights  of  the 
paternal  power,  and  other  subordinate  states.  These, 
he  contends,  sometimes  are  affected  by  a  change  of  do- 
micil,  and  sometimes  are  not.^  Some  of  this  last  class 
(he  adds)  affect  the  person  at  least  in  vim  conventionis 
tacitce  ;  and  this,  according  to  the  opinion  of  a  great 
number  of  jurists,  is  the  case  in  respect  to  the  law  of 
the  community  of  property  between  husband  and  wife.^ 
Others  of  the  same  class  affect  the  person  in  vim  soUus 
Ugis  ;  such  is  the  statute  or  law,  Sencdus  consiiltum  Vel- 
Idanum,  which  prohibits  married  women  from  making 
obligatory  personal  contracts  with  others.^  Boullenois 
himself  holds,  that  the  capacity  of  married  women  is 
governed  by  the  law  of  the  actual  or  new  domicil ;  ^ 
but  that  the  capacity  of  minors  is  governed  by  the  law 
of  their  domicil  of  birth.^  He  also  holds,  that  the  pa- 
ternal power  is  regulated  by  the  domicil  of  birth.''  But, 
here,  again,  he  distinguishes  between  movable  property 
and  immovable  property  j  holding  that  the  law  of  the 


1  2  Boullenois,  Observ.  32,  p.  11  ;  post,  §  71  ;  1  Boullenois,  Observ.  4, 
p.  50,  64. 

2  2  Boullenois,  Observ.  32,  p.  11,  12,  13  ;  post,  ^  71. 

3  2  Boullenois,  Observ.  32,  p.  11 ;  post,  §  143  to  ^  171. 

4  2  Boullenois,  Observ.  32,  p.  11,  13  ;  ante,  ^  15  ;  post,  ^  71,  ^  425. 

5  2  Boullenois,  Observ.  32,  p.  13  to  p.  19  ;  1  BouU.  Obs.  4,  p.  61  ;  post, 
§71. 

6  2  Boullenois,  Observ.  32,  p.  19,  20  to  p.  31 ;  1  BouU.  Obs.  4,  p,  53, 
54 ;  Id.  Dissert.  Mixtes,  Quest.  2,  p.  40  to  p.  62  ;  Id.  Quest.  20,  p.  406 
to  p.  447. 

7  2  Boullenois,  Observ.  32,  p.  31  to  p.  53  ;  1  Boull.Obs.  32,  p.  68  ; 
post,  §  71. 


CH.  IV.]  CAPACITY   OF  PERSONS.  83 

domicil  of  birth  governs  as  to  the  former,  and  the  law 
of  the  situation  {situs)  as  to  the  latter.-"^ 

§  58.  Merlin,  after  citing  the  opinions  of  other  ju- 
rists, formerly  came  to  the  conclusion,  that  the  law  of 
the  place  of  birth,  and  not  that  of  the  new  domicil, 
ought  to  govern  equally  in  all  these  cases,  of  minority, 
of  paternal  power,  and  of  marital  power  after  marriage  ; 
and  he  expressed  surprise,  and  not  without  reason,  that 
Boullenois  should  have  attempted  to  distinguish  be- 
tween them.2  It  is  certainly  not  for  me  to  interfere  in 
such  grave  controversies  between  these  learned  jurists, 
differing  from  each  other,  sometimes  in  leading  princi- 
ples, and  sometimes  in  deductions  and  distinctions,  ap- 
plicable to  principles,  in  which  they  agree.  Non  nos- 
trum inter  vos  tantas  componere  lites.  Yet  Merlin  himself, 
after  having  advocated  this  doctrine,  as  best  founded  in 
principle,  although  involving  some  inconveniences,  still 
insisted,  that  upon  such  a  removal  to  a  new  domicil,  the 
capacity  of  a  person  to  dispose  of  his  movable  property 
by  a  testament  is  to  be  governed  by  the  law  of  the  new 
domicil;  because  the  state  of  a  person  has  no  influence, 
as  to  the  distribution  of  his  movable  property  after  his 
death  ;  and  the  capacity  to  make  a  will,  resulting  from 
age,  has  nothing  in  common  with  what  is  properly  call- 
ed the  state  of  the  person ;  which  is  so  true,  that  his 
state  is  governed  by  the  domicil,  and  the  situation  de- 
cides solely  concerning  the  age,  at  which  a  person 
may  dispose  of  movable  property  upon  his  death.^     It 


1  1  Boullenois,  Obs.  32,  p.  32,  33,  to  p.  53  ;  Id.  Dissert.  Mixtes,  Quest. 
20,  p.  406  to  p.  447. 

2  Merlin,  Repert.  Autorisation  Maritale,  §  10,  art.  4,  edit.  Brux..  1827, 
p.  243,  244;  post,  ^  139. 

3  Merlin,  Repert.  Majorite,  ^  4 ;  Id.  Effet  Retroactif,  §  3,  n.  2,  art.  5, 
n.  3  ;  Id.  Autorisation  Maritale,  §  10,  art.  4,  edit.  Brux.  1827. 


84  CONFLICT    OF   LAWS.  [CH.  IV. 

seems,  however,  that  Merlin  has  since,  upon  further 
reflection,  come  to  a  different  conclusion  ;  and  he  may 
be  now  numbered  among  those,  who  support  the  doc- 
trine, that  the  law  of  the  new  domicil  ought  to  govern 
in  all  cases,  whether  they  respect  capacity,  or  minority, 
or  the  paternal  power,  or  the  marital  power  after  mar- 
riage.^ 

§  59.  Pothier  holds  the  doctrine  in  the  most  unqua- 
lified terms,  that  the  law  of  the  new  or  actual  domicil 
ought  in  all  cases  to  govern ;  and  that  the  change  of 
domicil  discharges  the  party  from  the  law  of  his  former 
domicil,  and  subjects  him  to  that  of  his  new  domicil. 
Le  changement  de  domicile  delivre  les  personnes  de  V Em- 
pire dcs  Lois  du  lieu  dii  domicile,  qiCelles  qiiittent,  et  les 
assvjettit  a  celles  du  lieu  du  noveau  domicile,  quelles 
acquierent?  Whatever  doubts  may  be  suggested  of 
the  correctness  of  his  opinion  in  a  juridical  sense,  it 
must  be  admitted  to  possess  the  strong  recommenda- 
tion of  general  convenience  and  certainty  of  applica- 
tion.^ 

§  60.  Huberus,  instead  of  relying  upon  the  mere 
quality  of  laws,  as  personal,  or  real,  or  mixed,  lays 
down  the  following  doctrine.     Personal  qualities,  im- 


1  See  Merlin,  Repert.  Effet  Betroactif,  ^  3,  n.  2,  art.  5,  p.  13,  &c., 
edit.  Brux.  1827  ;  Id.  Autorisation  Maritale,  ^  10,  art.  4,  p.  243,  244  ;  Id. 
Majorite,  ^  4,  p.  1S7,  188.  See  also  Id.  Testament,  §  1,  n.  5,  art.  1,  art. 
2,  p.  309  to  p.  324  ;  post,  ^  139. 

2  Pothier,  Cout.  d'0rl6ans,  ch.  1,  art.  1,  n.  13.  — We  shall  presently 
see,  that  Lord  Stowell  holds  the  opinion,  that  a  change  of  domicil  may 
change  the  state  and  condition  of  the  party  ;  as,  for  example,  if  he  be  a 
slave..  See  The  Slave  Grace,  2  Hagg.  Adm.  R.  94,  113  ;  post,  ^  96, 
96  a. 

3  See  1  Burge,  Comment  on  Col.  and  For.  Law,  P.  l,ch.  3,  §3,  p.  118, 

119. 


CH.  IV.]  CAPACITY   OF   PERSONS.  85 

pressed  by  the  laws  of  any  place,  surround  and  accom- 
pany the  person,  wherever  he  goes,  with  this  effect, 
that  in  every  place  he  enjoys,  and  is  subject  to  the 
same  law,  which  such  persons  elsewhere  enjoy,  or  are 
subject  to.  Qualitates  loersonalcs  certo  loco  alicui  jure 
impi'essas,  libique  circumfcrri  et  personam  comitari,  cum 
hoc  effeciu,  id  uUqiie  locoriim  eo  jure,  quo  tales  personce 
aliU  gaiident  vel  suljecti  sunt,  fruantur  et  subjiciantur} 
Therefore,  (he  adds,)  those,  who  with  us  are  under 
tutelage  or  guardianship,  such  as  minors,  prodi- 
gals, and  married  women,  are  everywhere  deemed  to 
be  persons  subject  to  such  guardianship  ;  and  possess, 
and  enjoy  the  rights,  which  the  law  of  the  place  attri- 
butes to  persons  under  guardianship.^  Hence,  he,  who 
in  Friesland  has  obtained  the  privilege  of  age  (veniam 
cetatis,)  contracting  in  Holland,  will  not  there  be  enti- 
tled to  restitution  in  integrum,  as  if  he  were  a  minor. 
In  other  words,  he,  who  in  Friesland  has  obtained  the 
privilege  of  an  exemption  from  the  disabilities  of  his 
minority,  will  not,  if  he  afterwards  contracts  in  Hol- 
land, be  deemed  entitled  to  the  privilege  of  being  there 


1  Huberus,  De  Conflict.  Leg.  Lib.  1,  tit.  3,  ^  12. 

2  Ibid. 

3  Ibid.  Under  the  Roman  Law  the  Prastor  by  his  Edict  declared,  that 
he  would  grant  redress  in  regard  to  transactions  with  minors  under  twenty- 
five  years  of  age.  Quod  cum  minora  quam  viginti-quinque  annos  natu, 
gestum  esse  dicetur  ;  uti  quaque  res  erit,  animadvertam.  Dig.  Lib.  4, 
tit.  4,  1.  I  ;  Pothier,  Pand.  Lib.  4,  tit.  4,  n.  1.  But  those  persons,  who 
had  obtained  the  privilege  of  age,  were  not  entitled  to  any  such  relief. 
Eos,  qui  veniam  aetatis  a  principali  dementia  impetraverunt,  etiamsi  mi- 
nus idonee  rem  suam  administrare  videantur,  in  integrum  restitutionis 
auxilium  impetrare  non  posse,  manifestissimum  est ;  ne  hi,  qui  cum  eis 
contrahunt,  principali  authoritate  circumscripti  esse  videantur.  Cod.  Lib. 
2,  tit.  45,  1.  1  ;  Pothier,  Pand.  Lib.  4,  tit.  4,  n.  4.  The  action  thus  given 
to  minors  was  often  called  Restitutio  in  integrum.  Vicat.  Vocab.  Voce, 
Restitutio. 

CONFL.  8 


86  CONFLICT    OF   LAWS.  [CH.  IV. 

held  a  minor,  so  as  to  exempt  him  from  liability  on  his 
contract,  {lU  non  restituitur  in  integrum.^  He,  who  is 
declared  a  prodigal  here,  cannot  enter  into  a  valid  con- 
tract or  be  sued  in  another  place.  Hinc  qui  apiid  nos  in 
Meld  eiirdve  sunt,  lit  adolescentes,  filii-familias,  prodigi, 
midieres  miptce,  uUqiie  pro  personis,  curce  suhjectis  hahen- 
tur,  et  jure,  quod  cura  singiUis  in  locis  trihuit,  iituntur,  [e^] 
fruiintiir.  Hinc,  qui  in  Frisid  veniam  cetatis  iinpetravit,  in 
HoUandid  contrahens,  ili  non  restituitur  in  integrum.  Qui 
prodigus  heic  est  declaratus,ali'bi  contrahens  valide  non  ohli- 
gatur,  neque  convenitur?  Again,  in  some  provinces, 
those,  who  are  over  twenty-one  years  of  age,  are  deemed 
of  majority,  and  may  alienate  their  immovable  proper- 
ty, and  exercise  other  rights  less  important  even  in 
those  places,  where  no  one  is  deemed  of  majority,  until 
he  has  attained  twenty-five  years ;  because  all  other 
governments  give  effect  by  comity  to  the  laws  and  ad- 
judications of  other  cities  in  regard  to  their  subjects, 
so,  always,  that  there  be  no  prejudice  to  their  own  sub- 
jects, or  their  own  law.^ 

§  61.  He  goes  on  to  remark  ;  "  There  are  some  per- 
sons, who  thus  interpret  the  effect  of  laws  respecting 
the  quality  of  persons,  that  he,  who  in  a  certain  place 
is  a  major,  or  a  minor,  in  puberty,  or  beyond  it,  a  son 
subject  to  paternal  power,  or  a  father  of  a  family,  un- 
der or  out  of  guardianship,  everywhere  enjoys,  and  is 


1  The  Veniam  ^tatis  is  a  privilege  granted  by  the  Prince  or  Sove- 
reign, whereby  the  party  is  entitled  to  act,  and  to  have  all  the  pov?ers  to 
act  sui  juris,  as  if  he  were  of  full  age.  See  Vicat.  Vocabul.  Voce,  "  Ve- 
niam iEtatis."  Calvinus,  Lex.  Jurid.  ch.  v.  ;  Cod.  Lib.  2,  tit.  45,  I.  1  ; 
Rodenburg,  De  Diversit.  Statut.  tit.  1,  ch.  3,  §  9  ;  2  Boullenois,  App.  9  ; 
1  Burge,  Comment,  on  Col.  and  Foreign  Law,  P.  1,  ch.  3,  ^  3,  p.  116. 

2  Huberus,  De  Conflict.  Leg.  Lib.  1,  tit.  3,  §  12. 

3  Huberus,  Lib.  1,  tit.  3,  §  12  ;  ante,  ^  29  ;  post,  §  139,  145. 


CH.  IV.]  CAPACITY    OF   PERSONS.  87 

subject  to  the  same  law,  which  he  enjoys,  and  to  which 
he  is  subject,  in  that  place,  where  he  first  becomes,  or  is 
deemed  such.  So  that  whatever  he  could  do,  or  could 
not  do  in  his  own  country,  the  same  is  allowed,  and 
prohibited  to  him  to  do.^  This  seems  to  me  unreason- 
able, and  would  occasion  too  great  a  confusion  of  laws, 
and  a  burden  upon  neighboring  nations,  arising  from 
the  laws  of  others.^  The  importance  of  this  thing  will 
be  made  plain  by  a  few  examples.  Thus,  an  uneman- 
cipated  son  {^fillu^  familids,)  who  cannot  in  Friesland 
make  a  testament,  goes  into  Holland,  and  there  makes 
a  testament ;  it  is  asked,  whether  it  has  any  validity  ? 
I  suppose  it  is  valid  in  Holland,  according  to  my  first 
and  second  rule  j  ^  because  the  laws  bind  all  those  who 
are  within  any  territory  ;  neither  is  it  proper  {civile  sit,) 
that  Hollanders,  in  respect  to  business  done  among 
themselves,  should,  neglecting  their  own  laws,  be  go- 
verned by  foreign  laws."*  But  it  is  true,  that  this  testa- 
ment would  not  have  effect  in  Friesland,  according  to 
the  third  rule  ;  ^  because  in  that  way  nothing  would  be 
more  easy  than  for  our  citizens  to  elude  our  laws,  as 
they  might  be  evaded  every  day.*^  But  such  a  testa- 
ment would  be  of  validity  elsewhere,  even  where  an 
unemancipated  son  could  not  make  a  will ;  for,  there, 
the  reason  of  evading  the  laws  of  a  country  by  its  own 
citizens  ceases  ;  for  in  such  a  case  the  fact  (of  evasion) 
would  not  be  committed." ' 

§  62.  This  doctrine  of  Huberus  is  not  in  its  full  ex- 
tent maintainable,  and  especially  in  relation  to  immov- 


1  Huberus,  Lib.  1,  tit.  3,  ^  12.          2  ibid. 

3  Ante,  ^  29.  4  Huberus,  Lib.  1,  tit.  3.  §13. 

5  Ante,  i  29.  6  Huberus,  Lib.  1,  tit.  3,  §  13. 
^  Ibid. 


88  CONFLICT   OP  LAWS.  [CH.  IV. 

able  property,  it  is  universally  repudiated  by  the  com- 
mon law,  and  in  many  cases  is  also  denied  by  foreign 
jurists.'  Lord  Stowell  has  expressly  said,  that  he  does 
not  mean  to  affirm,  that  Huberus  is  correct  in  laying 
down,  as  universally  true,  that  being  of  age  in  one 
country,  a  man  is  of  age  in  every  other  country,  be  the 
law  of  majority  of  the  latter  what  it  may.^ 

§  63.  Without  venturing  further  into  the  particular 
opinions  maintained  by  foreign  jurists  on  this  subject, 
under  all  its  various  aspects,  (a  task,  considering  the 
great  diversity  of  judgment  among  them,  which  would 
be  almost  endless,)  it  may  perhaps  be  useful  to  place 
before  the  reader  some  of  the  doctrines,  maintained  by 
foreign  jurists,  which  appear  best  established,  or,  at 
least,  which  seem  to  have  the  sanction  of  such  author- 
ity, as  has  given  them  a  superior  weight  and  recom- 
mendation in  the  jurisprudence  of  continental  Eu- 
rope.^ 

§  64.  In  the  first  place  the  acts  of  a  person,  done  in 
the  place  of  his  domicil,  in  regard  to  property  situated 
therein,  are  to  be  judged  of  by  the  laws  of  that  place, 
and  will  not  be  permitted  to  have  any  other  legal  effect 
elsewhere,  than  they  have  in  that  place.*  There  are 
exceptions  to  this  rule  ;  but  they  result  from  some 
direct  or  implied  provisions  of  law  in  the  customary  or 


'  See  the  authors  cited  by  Merlin,  R6pert.  Majority,  ^  5  ;  post,  ^  363 
to  §  373,  ^  474  to  479. 

2  Ruding  V.  Smith,  2  Hagg.  Ecc.  Rep.  391,  392. 

3  See  I  Burge,  Comment,  on  Col.  and  For.  Law,  P.  1,  ch.  3,  §  3, 
p.  118,  to  p.  129. 

4  "  Stalutum  personale,"  (says  Paul  Voet,)  "  ubiquelocorum  personam 
comitatur,  in  ordine  ad  bona  intra  territorium  statuentis  sita,  ubi  persona 
affecta  domicilium  habet."  P.  Voet,  De  Statut.  ^  4,  ch.  2,  ^  6,  p.  138, 
edit.  1661.  See  1  Burge,  Comment,  on  Col.  and  For.  Law,  P.  1,  ch.  4, 
p.  113. 


CH.  IV.]  CAPACITY   OF   PERSONS.  89 

positive  code  of  the  country,  in  which  the  act  comes  in 
judgment,  applying  to  the  very  case  ;  for  it  is  compe- 
tent for  a  country,  if  it  pleases,  to  prescribe  its  own 
rule  for  all  cases,  arising  out  of  transactions  in  foreign 
countries,  whenever  any  rights  under  them  are  brought 
into  controversy,  or  are  sought  to  be  enforced  in  its 
own  tribunals.  If,  therefore,  a  person  has  a  capacity 
to  do  any  act,  or  is  under  an  incapacity  do  any  act,  by 
the  law  of  the  place  of  his  domicil,  the  act,  when  done 
there,  will  be  governed  by  the  same  law,  whenever  its 
validity  may  come  into  contestation  with  any  other 
country.  Thus,  an  act  done  by  a  minor,  in  regard  to 
his  property,  situate  in  the  place  of  his  domicil,  with- 
out the  consent  of  his  guardian,  if  valid  by  the  law  of 
the  place  of  his  domicil,  where  it  is  done,  will  be  recog- 
nized as  valid  in  every  other  place  ;  if  invalid  there, 
it  will  be  held  invalid  in  every  other  place.  So,  if  a 
married  woman,  who  is  disabled  by  the  law  of  the  place 
of  her  domicil  from  entering  into  a  contract,  or  from 
transferring  any  property  therein,  without  the  consent 
of  her  husband,  should  make  a  contract,  or  transfer  any 
property  situated  therein,  the  transaction  will  be  held 
invalid,  and  a  nullity  in  every  other  country.^  This 
seems  to  be  a  principle  generally  recognized  by  all  na- 
tions, in  the  absence  of  any  positive  or  implied  munici- 
pal regulations  to  the  contrary  ;  according  to  the  max- 
im quando  lex  in  personam  dirigitiir,  resjnciendiini  est  ad 
leges  illiiis  civitatis,  quce  personam  hahet  siibjectam? 


1  1  BouUenois,  Prin.  Gen.  6  ;  1  Froland,  M6m.  des  Statuts.  ch.  7, 
p.  156. 

2  1  Hertii  Opera,  De  CoUis.  Leg.  ^  4,  art.  8,  p.  123,  edit.  1737  ;  Id. 
p.  175,  edit.  1716.  —  The  learned  reader  is  referred  for  proofs  to  Huberus, 
De  Conflict.  Leg.  Lib.  1,  tit.  3,  ^  12,  13,  15  ;  1  BouUenois,  Prin.  Gen.  10, 
12,  16,  17 ;  Id.  Observ.  8,  tit.   1,  ch.  3,  p.  145,  &c.  ;  2  BouUenois,  Ob- 

8* 


90  CONFLICT    OF   LAWS.  [CH.  IV. 

§  65.  In  the  next  place,  another  rule,  directly  con- 
nected with  the  former,  is,  that  the  personal  capacity, 
or  incapacity,  attached  to  a  party  by  the  law  of  the 
place  of  his  domicil,  is  deemed  to  exist  in  every  other 
country,  (qttalitas  personam,  siciit  iimhra  sequikir,)  so  long 
as  his  domicil  remains  unchanged,  even  in  relation  to 
transactions  in  any  foreign  country,  where  they  might 
otherwise  he  obligatory.^  Thus,  a  minor,  a  married 
woman,  a  prodigal,  or  a  spendthrift,  a  person  non  com- 
pos mentis^  or  any  other  person,  who  is  deemed  incapa- 


serv.  32,  tit.  2,  ch.  1,  p.  1  to  53  ;  Rodenburg,  De  Divers.  Statut.  ch.  3  ; 
2  Boull.  App.  p.  7  ;  Id.  tit.  2,  ch.  1  ;  2  Boull.  App.  p.  10  ;  P.  Voet,  De 
Statut.  §  4,  ch.  2  ;  Id.  ch.  3,  p.  128,  143,  edit.  1661  ;  1  Hertii  Opera,  De 
Collis.  Leg.  H>  8,  p.  123,  edit.  1737  ;  Id.  p.  175,  edit.  1716  ;  Froland, 
M6m.  des  Statuts,  P.  1,  ch.  5,  7  ;  Id.  P.  2,  ch.  33  ;  Bouhier,  Cout.  de 
Bourg.  ch.  22,  23,  24. 

1  "  Ergo  conditio  personae  a  causa  domicilii  tota  regitur.  Nam  ut  con- 
sentiunt  Doctores,  idem  sunt  forum  sortiri  et  statulis  subjici ;  et  unusquis- 
que  talis  esse  praesumitur,  qualis  est  dispositio  statuti  suae  patriae.  Pro- 
inde,  ut  sciamus,  uxor  in  potestate  sit  mariti  necne,  qua  sstate  minor  con- 
trahere  possit,  et  ejusmodi  respicere  oportet  ad  legem  cujusque  domicilii." 
Burgundus,  Tract.  2,  n.  6  ;  1  Boullenois,  Observ.  4,  p.  53.  "  C'est  ainsi, 
(says  Boullenois,)  que  la  majorite  et  la  minority  du  domici!  ont  lieu  par- 
tout,  meme  pour  les  biens  situ^s  aillours  ;  "  1  Boullenois,  Prin.  G^n. 
art.  6  ;  Id.  Observ.  10,  12  and  46.  "  Celui  qui  est  majeur  (says  Froland) 
suivant  la  coutume,  ou  il  a  pris  naissance,  et  sour  laquelle  il  reside,  est 
majeur  partout,  et  peut  comme  tel,  aliener,  hypotequer,  vendre  ses  biens, 
sans  consid6rer,  si  suivant  la  loi  de  leur  situation  il  seroit  mineur."  1  Fro- 
land, M^m.  des  Statuts,  ch.  7,  p.  156.  Rodenburg  holds  the  same  doc- 
trine. Rodenburg,  De  Divers.  Stat.  tit.  2,  ch.  1.  So  D'Argentr^  ;  "  Quo- 
tiescunque  de  habilitate  aut  de  inhabilitate  personarura  quaeratur,  toties 
domicilii  leges  et  statuta  spectanda."  D'Argentr6,  de  Briton.  Leg.  des 
Donations,  art.  218,  Gloss.  7,  n.  48,  49.  1  Livermore,  Diss.  34.  So, 
John  Voet :  "  Potius  domicilii  leges  observandas  existimem  ;  quoties  in 
quaestione,  an  quis  minor  vel  majorennis  sit,  obtinuit,  id  dijudicandum  esse 
ex  lege  domicilii  ;  sit  ut  in  loco  domicilii  miiiorennis,  ubique  terrarura  pro 
tali  habendus  sit,  et  contra."  J.  Voet,  ad  Pand.  lib.  4,  tit.  1,  §  29.  See 
also  Foelix,  Conflict  des  Lois-Revue  Etrang.  et  Fran.  Tom.  7,  1840,  p. 
200  to  p.  216. 


CH.  IV.]  CAPACITY   OF   PERSONS.  91 

ble  of  transacting  business  {siii  juris)  in  the  place  of 
his  or  her  doraicil,  will  be  deemed  incapable  every- 
where, not  only  as  to  transactions  in  the  place  of  his 
or  her  domicil,  but  as  to  transactions  in  every  other 

place.^ 

§  G6.  Thus,  according  to  this  rule,  if  an  American 
citizen,  domiciled  in  an  American  State,  as,  for  instance, 
in  Massachusetts,  where  he  would  be  of  age  at  twenty- 
one  years,  should  order  a  purchase  of  goods  to  be  made 
for  him  in  a  foreign  country,  where  he  would  not  be  of 
age  until  twenty-five  years  old,  the  contract  will  never- 
theless be  obligatory  upon  him.^     On  the  other  hand,  a 
person,  domiciled  in  such  foreign  country,  of  twenty- 
one  years  of  age  only,  who  should  order  a  like  purchase 
to  be  made  of  goods  in  Massachusetts,  will  not  be 
bound  by  his  contract ;   for  he  will  be  deemed  a  minor 
and  incapable  of  making  such  a  contract.^     The' same 
rule  will  govern  in  relation  to  the  disposition  of  per- 
sonal or  movable   property  by  any  person  who  is  a 
minor  or  a  major  in  the  place  of  his  domicil ;  for  it  will 
be  valid,  or  not,  according  to  the  law  of  the  place  of 
his  domicil,  wherever  such  property  may  be  situate.^ 


1  1  Boullenois,  Princ.  G6n.  10,  19,  et  Observ.  4,  12,  16,  p.  5  ;    1  Fro 
land,  M6m.  des  Stat.  ch.  7,  p.  155,  156  ;  Rodenburg,  de  Divers.  Stat.  tit. 
2,  ch.  1 ;  2  Boullenois,  Appx.  p.  10. 

2  By  the  law  of  some  commercial  countries,  the  age  of  twenty-five  years 
is  that  of  majority.  This  was  the  old  law  of  France  ;  but  the  modern 
code  has  changed  the  age  of  majority  to  twenty-one,  except  as  to  marriage 
without  the  consent  of  parents.  Code  Civil  of  France,  art.  488  ;  Id.  art. 
148.  See  also  Rodenburg,  de  Diversit.  Statul.  tit.  2,  ch.  1 ;  2  BouUe- 
noix,  Appx.  p.  10. 

3  Huberus,  De  Conflictu  Legum,  Lib.  1,  tit.  3,  ^  12. 

4  1  Froland,  des  Stat.  M6m.  ch.  7,  p.  157,  158  ;  1  Boullenois,  Trine. 
Gen.  6,  19;  Id.  Observ.  4,  12;  Rodenburg,  De  Divers.  Stat.  tit.  2,ch.  1; 
2  Boullenois,  Appx,  p.  10. 


92  CONFLICT    OF   LAWS.  [CH.  IV. 

There  are  exceptions  also  made  to  this  rule ;  hut  they 
stand  upon  peculiar  grounds,  as  expounded  by  foreign 
jurists. 

§  66  6f.  The  like  rule  will  apply  to  the  capacity  and 
incapacity  of  married  women.  If  by  the  law  of  the 
place  of  the  domicil  of  the  husband  a  married  woman 
has  a  capacity  to  sue,  or  to  make  a  contract,  or  to  ratify 
an  act,  her  acts  so  done  will  be  held  valid  everywhere. 
On  the  contrary,  if  she  is  deprived  of  such  capacity  by 
the  law  of  the  domicil  of  her  husband,  that  incapacity 
exists  in  relation  to  all  the  like  acts  and  contracts,  even 
when  done  in  a  foreign  country,  or  with  reference  to 
property  in  a  foreign  country.^ 

§  67.  The  ground,  upon  which  this  rule  has  been 
generally  adopted  by  many  eminent  continental  jurists, 
doubtless  is  that,  suggested  by  Rodenburg,  namely,  the 
extreme  inconvenience,  which  would  otherwise  result  to 
all  nations  from  a  perpetual  fluctuation  of  capacity, 
state,  and  condition,  upon  every  accidental  change  of 
place  of  the  person,  or  of  his  movable  property.^  The 
language  of  Rodenburg  is  ;  Quid  igitur  rei  in  causa  est, 
quod  2^ersonalia  statuta  territommi  egrediantur  ?  Unicum 
hoc  ipsa  rei  natura  ac  necessitas  invexit,  ut,  cum  de  statu 
ac  conditione  hominum  qucerUiir,  uni  soliimmodo  Judici,  et 
quidem  domicilii,  iiniversiim  in  ilia  Jus  sit  attrihutum  :  cum 
enim  ah  uno  certoquc  loco  statiim  hominis  legem  accipere 
necesse  esset,  quod  ahsurdum,  earumque  rerum  naturaliter 
inter  se  pugna  foret,  ut  in  quot  hca  quis  ita  faciem,  aut 
navigans  delatiis  fuerit,  totidem  iUe  statum  midaret  aut  con- 
ditionem  ;  id  uno  eodemque  tempore  hie  sui  Juris,  illic  alieni 


^  Gamier  v.  Poydras,  13  Louis.  R.  177. 

2  Rodenburg,  de  Divers.  Stat,  tit.  1,  ch.  3,  n.  4  ;  2  Boullenois,  App. 
p.  8.     See  also  1  Boullenois,  Observ.  4,  p.  48,  49. 


CH.  IV.]  CAPACITY   OF   PERSONS.  93 

fidurus  sit ;  uxor  sinml  in  potestate  viri,  et  extra  eandem 
sit ;  alio  loco  haheatur  qiiis  prodigiis,  alio  fnigi;  ac  pra- 
terea  quod  persona  certo  loco  non  affigeretm\  cum  res  soli 
hco  fix(E  citra  incommodimi  ejusdem  legihiis  siibjaceant, 
siimmd  providentid  constitutmn  est,  ut  a  loco  domicilii,  ciii 
quis  larem  fovendo  se  subdiderit,  statum  ac  conditionem 
induat :  illis  Legislatoribus,  pro  soli  sid  genio,  optime  om- 
nium  compertum  hahentihis,  qua  judicii  maturitate  pollcant 
sid)diti,  ut  possint  constituere,  qui  eorum,  ac  qiiando  ad  sua 
tuenda  ncgotia  indigeant  auctoritate.  Hcbc  igitur  peisonarum 
qualitus  an  cmrditio,  riM  veno.rif,  applicand.a  ad  res  aiit  actus 
alterius  territorii,  jam  indirecte,  ac  per  conseqiientiam  vis 
illiiis  personalis  Statuti  extra  statuentis,  pertinget  locum  : 
ciim  et  alias  non  insolitum  sit  multa  indirecte  permitti  et  per 
conseqiientiam,  qu(Z  directe  et  expressim  non  valerent.  Nee 
est,  quod  quemquam  turlet,  quod  et  ilia  Statida  extra  terri- 
torii limites  diximus  excurrere,  quihiis  nominatim  status  liomi- 
num  in  universum  non  discutitur,  quce  in  incertos  personates 
actus  a  persona  exercendos,  prohihendo  cos  aid  permittendo, 
concepta  sunt} 

§  68.  The  modem  law  of  France,  as  it  is  laid  down 
by  Pardessn.s,  is  to  the  same  effect.^  "No  act,  whatso- 
ever may  be  its  nature,"  (says  he,)  "can  be  stipulated, 
except  by  persons  capable  of  binding  themselves ;  and 
the  general  consent  of  civilized  nations  has  allowed, 
that  whatever  concerns  the  capacity  of  a  person  should 
be  regulated  by  the  laws  of  the  country  to  which  he 
belongs.  A  person,  declared  incapable  by  the  law  of 
the  country,  of  which  he  is  a  subject,  cannot  be  relieved 
of  that  incapacity,  except  by  the  law  of  that  country, 


1  2  Boullenois,  Appx.  p.  8  ;    Foelix  Conflict  des  Lois-Revue  Etrang.  et 
Fran.  Tom.  7,  1840,  p.  200  to  p.  216.      * 

2  Pardessus,  De  Droit  Commercial,  Vol.  5,  art.  1482,  p.  248. 


94  CONFLICT    OF   LAWS.  [CH.  IV. 

as  well  in  regard  to  the  acts,  whicli  it  permits  him  to 
do,  as  to  the  conditions  which  it  prescribes  in  doing 
them.  Thus,  French  minors,  incapable  of  binding 
themselves  by  engagements  of  commerce,  unless  they 
are  emancipated  or  authorized,  cannot  bind  themselves 
in  commercial  transactions  in  a  foreign  country,  even 
when  the  law  of  that  country  does  not  require  the  like 
conditions.  So,  French  married  women,  who  are  not 
public  traders,  are  not  deemed  to  have  contracted  valid 
engagements,  even  in  commerce,  unless  they  should  be 
authorized  by  their  husbands.  Their  personal  inca- 
pacity follows  them  everywhere.  For  the  same  reason, 
the  French  tribunals  will  not  consider  as  valid  any 
commercial  engagements,  entered  into  in  France  by 
minors,  or  persons  of  either  sex,  who,  by  the  law  of 
their  own  country,  are  rendered  incapable,  even  though 
the  law,  to  which  they  are  subject,  should  require  other 
conditions,  than  those  prescribed  by  the  law  of  France. 
For  it  is  the  interest  of  one  government  to  respect,  in 
favor  of  the  subject  of  another  government,  when  he  is 
cited  before  its  tribunals,  the  laws,  upon  the  faith  of 
which  that  foreigner  has  contracted,  and  not  to  tolerate 
him  in  withdrawing  himself,  by  a  mere  change  of  juris- 
diction, from  the  laws  which  regulate  his  capacity,  and 
to  which  he  is  bound  by  his  allegiance,  wherever  he 
may  inhabit.  Without  this,  the  government  would 
expose  its  own  subject  to  be  treated  with  a  like  injus- 
tice by  what  is  denominated  the  right  of  retaliation  or 
reprisals.'  So  also  a  foreigner,  born  under  a  legisla- 
tion, which   does  not  require  certain  formalities,  like 


1  5  Pardessus,  P.  6,  tit.  7,  ch.  2,  ^  1,  art.  1482  ;  Henry  on  Foreign 
Law,  Appendix,  p.  221,  222.  *See  Cochin,  (Eavres,  Tom.  1,  p.  154, 
4to  edit. 


CH.  IV.]  CAPACITY   OF  PERSONS.  95 

those  of  France,  by  which  a  minor,  or  other  person  of 
either  sex,  may  be  authorized  to  engage  in  commerce, 
cannot  avail  himself  of  our  laws  to  escape  from  his 
engagement.  One  has  no  right  to  invoke  for  the  same 
object  two  different  legislations  ;  the  law,  which  regu- 
lates the  capacity  of  the  foreigner,  regulates  it  every- 
where. It  would  be  unjust,  that  he  should  derive  from 
our  legislation,  to  which  he  is  not  subjected,  an  advan- 
tage, which  is  not  granted  to  him  by  his  own  proper 
legislation."  Yet  Pardessus  is  compelled  to  admit,  that 
there  may  be  exceptions  to  the  doctrine.  Thus,  for 
example,  he  says,  that  certain  particular  prohibitions, 
such  as  the  prohibition  of  persons,  who  are  nobles,  or 
possessing  a  certain  dignity,  to  sign  bills  of  exchange, 
or  other  engagements,  which  carry  with  them  a  right 
to  arrest  the  body,  ought  not  to  govern  transactions  of 
that  sort  in  foreign  countries.  However,  the  modern 
Civil  Code  of  France  ^  lays  down  the  general  rule  in  the 
broadest  terms,  and  declares,  that  the  laws  concerning 
the  state  and  capacity  of  persons  govern  Frenchmen, 
even  if  resident  in  a  foreign  country ;  Les  loix  concern- 
ant  Vetatet  la  capacite  des  personnes  regissent  les  Francois 
mi?ne  residant  en  pais  Stranger? 

§  69.  In  the  third  place,  another  rule  is,  that,  upon  a 
change  of  domicil,  the  capacity  or  incapacity  of  the  per- 
son is  regulated  by  the  law  of  the  new  domicil.^  Po- 
thier  lays  down  this  rule  as  we  have  seen,  in  emphatic 
terms.     "  The  change  of  domicil "  (says  he)  "  delivers 


1  Pardessus,  de  Droit  Comraerc.  Vol.  5,  art.  1483,  p.  250  ;  post,  §  74. 

2  Code  Civil  of  France,  art.  3  ;  ante,  ^  54. 

3  Consult  1  Burge,  Comment,  on  Col.  and  For.  Law,  P.  1,  ch.  3,  ^  3, 
p.  102,  103 ;  Id.  P.  1,  ch.  4,  p.  118  to  p.  128,  where  the  principal  author- 
ities are  collected. 


96  CONFLICT    OF   LAWS.  [CH.  IV. 

persons  from  the  empire  of  the  laws  of  the  place  of  the 
domicil  they  have  quitted,  and  subjects  them  to  those 
of  the  new  domicil  they  have  acquired."  Le  ehange- 
ment  de  domicile  delivre  les  personnes  de  V empire,  des  lois 
du  lieu  du  domicile,  qiHelles  quittent,  et  les  assiijettit  a  celles 
du  lieu  de  nouveau  domicile,  qu'elles  acqiiidrent}  Burgun- 
dus  adopts  the  same  rule  :  Consequenter  dicemus,  si  mida- 
verit  domicilium  persona,  novi  domicilii  conditionem  induere.^ 
So  Rodenburg  ;  Personce  enim  status  et  conditio  cum  tota 
regcdur  a  legibus  loci,  cid  ilia  sese  per  domicilium  subdiderit, 
utique  mutato  domicilio  miitari  et  necesse  est  personce  condi- 
tionem? Froland,  indeed,  (as  we  have  already  seen,) 
mentions  a  different  doctrine,  in  which  to  some  extent 
he  is  followed  by  Bouhier  and  others.*  The  doctrine, 
however  which  is  most  generally  approved,  is  that, 
which  has  been  maintained  by  Pothier,  although  it  is 
contradicted  by  the  modern  Code  of  France.^ 

§  70.  Having  stated  these  rules,  it  may  be  proper  to 
notice  a  distinction,  which  in  many  cases  may  have  a 
material  operation.  So  far  as  respects  the  capacity  or 
incapacity  of  the  person,  the  law  of  the  new  domicil 
would  probably  prevail  in  the  tribunals  of  the  country 


1  Pothier,  Coutum.  d'0rl6ans,  eh.  1,  art.  1,  n.  13  ;  ante,  §  51. 

2  1  Boullenois,  Obs.  4,  p.  53;  ante,  ^  51,  a,  ^  56  ;  Burgundus,  Tract. 
2,  n.  7,  p.  61. 

3  Rodenburg,  De  Divers.  Stat.  tit.  2,  p.  2,  ch.  1,  n.  3  ;  2  Boullenois, 
Appx.  p.  56  ;  2  Boullenois,  ch.  1,  and  Obs.  32  ;  ante,  ^  51  a. 

4  1  Froland,  M6m.  ch.  7,  ^  13,  14,  15,  p.  171,  172  ;  Id.  ch.  33,  ^  4,  5, 
6,  7,  p.  1575  to  1582  ;  ante,  §  55  a.  ;  Bouhier,  Coutum.  de  Bourg.  ch.  22, 
^  17  to  20,  31,  p.  419  to  421.  See  also  Henry  on  Foreign  Law,  Appen- 
dix A,  p.  196.  See  2  Boullenois,  p.  1  to  53  ;  Merlin,  Repertoire,  Ma- 
jorit6,  ^  5  ;  Autorisation  Maritale,  ^  10 ;  Effet  Retroactif,  ^  2,  3,  art.  5  ; 
ante,  ^  55,  55  a,  56. 

5  Code  Civil  of  France,  art.  3.  See  also  Cochin  CEuvres,  Tom.  1. 
p.  154,  4to.  edit. ;  ante,  ^  51  a.  68. 


CH.    IV.]  CAPACITY    OF    PERSONS.  97 

of  that  domicil,  as  to  all  rights,  contracts,  and  acts,  done 
or  litigated  there.  The  same  law  would  probably  have 
a  like  recognition  in  every  other  country,  except  that 
of  the  original  or  native  domicil.  The  principal  diffi- 
culty, which  would  arise,  would  be,  how  far  any  rights, 
contracts,  and  acts,  would  be  recognized  by  the  latter, 
where  they  were  dependent  upon  the  law  of  the  new 
domicil,  which  should  be  in  conflict  with  its  own  law  on 
the  same  subject.  It  is  precisely  under  circumstances 
of  this  sort,  that  the  third  axiom  of  Huberus  may  be 
presumed  to  have  a  material  influence,  viz.  that  a  nation 
is  not  under  any  obligation  to  recognize  rights,  con- 
tracts, or  acts,  which  are  to  its  own  prejudice,  or  in  op- 
position to  its  own  settled  policy.^ 

§  71.  Boullenois  was  sensible  of  this  distinction,  as 
we  have  already  seen,^  and  says  ;  "  On  this  point  it  is 
necessary  to  distinguish  from  others  the  states  and  con- 
ditions of  persons  which  arise  from  laws  (qui  sont  des 
droits)  founded  upon  public  reasons,  admitted  among  all 
nations,  and  which  have  a  foundation  or  cause  absolutely 
foreign  from  the  domicil ;  so  that  the  domicil,  from  the 
moment  a  man  is  aflected  with  these  states  or  condi- 
tions, not  influencing  it  in  any  manner,  the  new  domicil 
ought  not  to  influence  it,  but  merely  the  public  reasons, 
superior  to  those  of  the  domicil,  to  which  all  nations 
pay  respect.  Such  are  interdiction  or  incapacity  from 
insanity  or  from  prodigality,  emancipation  from  the  pa- 
ternal power  by  royal  authority,  legitimacy  of  birth, 
nobility,  infamy,  &c.  These  states  do  not  change  with 
the  change  of  domicil ;  and  of  these  it  is  properly  said, 


1  See  on  this  subject,  1  Burge,  Comment,  on  Col.  and  For.  Law,  P.  1, 
oh.  3,  ^  3,  p,  129  to  p.  134. 

2  Ante,  ^  57  ;  2  Boullenois,  Observ.  32,  p.  10,  11,  13,  19. 

CONFL.  9 


98  CONFLICT    OF   LAWS.  [CH.  IV. 

that,  having  at  first  fixed  the  condition  of  the  person, 
the  change  of  domicil  does  not  put  an  end  to  them."  ^ 
And  he  adds  ;  "  But  there  are  states  and  conditions 
more  subordinate,  and  which  in  truth  arise  from  public 
laws,  {que  sont,  a  la  verite  des  droits  publics,)  but  are  for 
one  nation  only,  or  for  some  provinces  of  the  same  na- 
tion. Such  are  the  state  of  community  or  noncommu- 
nity  (of  property),  among  married  persons  [conjoints) ; 
the  state  of  the  husband  as  to  his  marital  power ;  the 
state  of  the  father,  as  to  the  rights  of  property  from  the 
paternal  power ;  and  these  subordinate  states  are  al- 
most infinitely  various."  ^  In  regard  to  these  latter 
states,  he  admits  the  embarrassment  of  laying  down  any 
general  rules,  as  to  the  effect  of  a  change  of  domicil.^ 
And  he  concludes  his  remarks  by  saying  ;  "  In  the  oc- 
currence of  so  great  a  number  of  laws,  (having  enume- 
rated several.)  which  have  so  different  an  effect,  what 
ought  one  to  do  in  the  decision  of  the  questions,  which 
may  be  presented  by  them  ?  For  myself,  I  do  not  see 
any  other  means,  than  these."  *  He  then  proceeds  to 
lay  down  these  rules;  (1.)  First,  to  follow  the  general 
principles,  which  declare,  that  the  person  should  be 
affected  b}^  the  state  and  condition,  which  his  domicil 
gives  him.  (2.)  Secondly  ;  not  to  derogate  from  these 
principles,  except  when  the  spirit  of  justice  and  neces- 
sity of  not  injuring  the  rights  of  parties  requires,  that  it 
should  be  departed  from.  (3.)  Thirdly;  not  to  impair 
these  principles,  when  otherwise  the  law  furnishes  the 
means  of  remedying  any  wrong,  which  the  change  of 


1  2  Boullenois,  Obser.  32,  p.  10,  11,  19. 

2  Ibid.  p.  11. 

3  Ibid. 

4  Ibid.  p.  12. 


CH.  IV.]  CAPACITY    OF   PERSONS.  99 

domicil  might  cause.^  Or,  in  other  words,  he  affirms  ; 
first,  that  the  law  of  the  domicil  ought  generally  to  be 
followed,  as  to  the  state  and  condition  of  the  persons  ; 
secondly,  that  it  ought  not  to  be  derogated  from,  except 
so  far  as  the  spirit  of  justice,  and  the  necessity  of  not 
injuring  the  rights  of  parties,  require  a  departure ; 
thirdly,  that  the  general  rule  ought  not  to  be  impaired, 
when  the  law  will  otherwise  furnish  means  to  remedy 
any  injury,  which  the  change  of  domicil  may  occasion." 
He  goes  on  to  declare  what  he  supposes  to  be  perfectly 
consistent  with  this  doctrine,  that  when  a  person  in  the 
domicil  of  his  birth  (domicilmm  originis),  has  arrived  at 
the  age  of  majority,  and  he  afterwards  removes  to  an- 
other place,  where,  at  the  same  years  he  would  still  be 
a  minor,  the  law  of  the  domicil  of  his  birth  ought  to 
prevail.3  For  instance,  if  a  person,  who  by  the  law  of 
the  domicil  of  his  birth  is  of  age  at  twenty,  removes  to 
another  place  after  that  age,  where  the  minority  ex- 
tends to  twenty-five  years,  he  does  not  lose  his  major- 
ity, and  become  a  minor  in  his  new  domicil.*  And,  on 
the  other  hand,  if  the  same  person  is  a  minor  by  the 
law  of  the  place  of  his  birth,  and  not  so  by  that  of  his 
new  domicil,  his  state  of  minority  continues,  notwith- 
standing his  removal.^  He  deduces  the  former  from  the 
injustice,  which  he  supposes  would  follow  from  re- 
ducing a  person  of  majority  in  the  domicil  of  his  birth 
to  a  state  of  minority  upon  a  change  of  domicil,  so  that, 
thereby  he  is  not  of  an  age  sufficiently  mature  to  con- 
tract, or  to  sell,  or  to  alienate  propert}^     The  latter  he 


1  2  Boullenois,  Observ.  32,  p.  12,  13. 

2  2  Boullenois,  Observ.  32,  p.  11,  12,  13,  19  ;  ante,  ^  57. 

3  2  Boullenois,  Observ.  32,  p.  12. 

4  2  Boullenois,  Observ.  32,  p.  12,  19,  20.  5  Ibid. 


100  CONFLICT    OF   LAWS.  [CH.  IV. 

seems  to  ground  upon  a  like  inconvenience  of  allowing 
a  man  thus  to  escape  from  the  disabilities  of  a  minor- 
ity in  the  place  of  his  birth,  by  a  mere  change  of  domi- 
cile This,  however,  is  but  changing  the  postures  of 
the  case.  For  Boullenois  himself  does  not  hesitate  to 
declare  the  general  principle  to  be  incontestable,  that 
the  law  of  the  actual  domicil  decides  the  state  and  con- 
dition of  the  person  ;  so  that  a  person  by  changing  his 
domicil  changes  at  the  same  time  his  condition.^  And 
he  is  compelled  to  admit,  that,  while  he  has  Froland 
and  Maillaud  in  support  of  his  opinion,  Lauterback,  and 
Burgundus,  and  Rodenburg  are  against  him.^  Perhaps 
a  better  illustration  of  the  intrinsic  difficulties  of  lay- 
ing down  any  general  rules  for  all  cases  could  not  well 
be  imagined  ;  for  Boullenois  himself,  as  we  have  seen, 
holds  laws  respecting  the  majority  and  minority  of  age, 
to  be  laws  affecting  the  state  and  condition  of  persons, 
and,  as  such,  governed  by  the  law  of  the  domicil ;  and 
yet  in  this  instance  he  rejects  the  natural  inference 
from  this  doctrine.^ 

§  72.  The  reason  given  by  those  civilians,  who  hold 
the  opinion,  that  the  law  of  the  domicil  of  birth  ought 
in  all  cases  to  prevail  over  the  law  of  the  place  of  the 
actual  domicil,  in  fixing  the  age  of  majority,  and  that  it 
remains  unalterable  by  any  change  of  domicil,  is  that 
each  State  or  Nation  is  presumed  to  be  the  best  capable 
of  judging  from  the  physical  circumstances  of  climate 
or  otherwise,  when  the  faculties  of  its  citizens  are  mo- 
rally or  civilly  perfect  for  the  purposes  of  society.     And 


1  2  Boullenois,  Observ.  33,  p.  12,  19,  20. 

2  2  Boullenois,  Observ.  32,  p.  13  ;  ante,  \  57. 

3  2  Boullenois,  Observ.  32,  p.  19,  20. 

4  1  Boullenois,  Princ.  G6n.  8,  10,  11,  17,  18;  Id.  Obs.  4,  p.  51,  52. 


OH.  IV.]  CAPACITY    OF   PERSONS.  101 

with  respect  to  cases  of  lunacy,  idiocy,  and  prodigality, 
it  is  supported  by  them  upon  the  general  argument 
from  inconvenience,  and  the  great  confusion  and  mis- 
chief, which  would  arise  from  the  same  person  being 
considered  as  capable  to  contract  in  one  place,  and  in- 
capable in  another  -,  so  that  he  might  change  his  civil 
character  and  capacity  with  every  change  of  his  domi- 
cile There  may,  perhaps,  be  a  solid  ground  of  argu- 
ment in  favor  of  giving  a  universal  operation  in  all 
other  countries  to  certain  classes  of  personal  incapaci- 
ties, created  by  the  law  of  the  domicil  of  the  party ;  but 
it  will  be  difficult  to  maintain,  that  the  same  reasoning 
does  or  can  apply  with  equal  force  in  favor  of  all  per- 
sonal incapacities ;  or,  that  the  law  of  the  domicil  of 
birth  ought  to  prevail  over  the  law  of  the  actual  domicil. 
And,  even  in  relation  to  those  personal  incapacities, 
which  are  supposed  most  easily  to  admit  of  a  general 
application,  it  is  by  no  means  so  clear,  that  the  argu- 
ment from  inconvenience  is  not  equally  strong  on  the 
other  side.^ 

§  73.  The  truth,  however,  seems  to  be,  that  there  are, 
properly  speaking,  no  universal  rules,  by  which  nations 
are,  or  ought  to  be,  morally  or  politically  bound  to  each 
other  on  this  subject.  Each  nation  may  well  adopt  for 
itself  such  modifications  of  the  general  doctrine,  as  it 
deems  most  convenient,  and  most  in  harmony  with  its 
own  institutions  and  interests,  and  policy.  It  may  suf- 
fer the  same  rule,  as  to  the  capacity,  state,  and  condi- 
tion, of  foreigners,  to  prevail  within  its  own  territory,  as 


1  Henry  on   For.  Law,  p.  5,  6  ;  Rodenb.  lit.    1,  ch.  3,  n.  4;  2  Boull. 
App.  p.  8. 

2  See  1  Burge,  Comment,  on  Col.  and  For.  Law,  P.  1,  ch.  3,  §  3,  p. 
129  to  p.  134. 

9* 


102  CONFLICT    OF   LAWS.  [CH.    IV. 

does  prevail  in  the  place  of  their  own  native  or  acquired 
domicil ;  and  it  may  at  the  same  time  refuse  to  allow 
any  other  rule,  than  its  own  law,  to  prevail,  within  its 
own  territory,  in  respect  to  the  capacity,  state,  and  con- 
dition of  its  own  subjects,  wherever  they  may  reside,  at 
home,  or  abroad.  It  may  adopt  a  more  limited  doc- 
trine, and  recognize  the  law  of  the  domicil  both  as  to 
foreigners  and  as  to  its  own  subjects,  in  respect  to  trans- 
actions and  property  in  that  domicil,  whether  native  or 
acquired,  and  at  the  same  time  exclude  any  operation, 
except  of  its  own  law,  as  to  the  transactions  and  property 
either  of  foreigners,  or  of  its  own  subjects  within  its 
own  territory.  It  may  adopt  the  more  general  doctrine, 
and  allow  the  rule  of  the  actual  domicil,  as  to  capacity, 
state,  and  condition,  to  prevail  under  every  variety  of 
change  of  domicil ;  or,  on  the  other  hand,  it  may  adhere 
to  the  stricter  doctrine,  that  the  domicil  of  birth  shall 
exclusively  furnish  the  rule  to  govern  in  all  such  mat- 
ters. But  whatever  rules  it  may  adopt,  or  whatever  it 
may  repudiate,  will  be  alike  the  dictate  of  its  own  policy 
and  sense  of  justice ;  and  whatever  it  may  allow,  or 
withhold,  will  always  be  measured  by  its  own  opinion 
of  the  public  convenience  and  benefit,  or  of  the  public 
prejudice  and  injury,  resulting  therefrom.  Probably  the 
law  of  the  actual  domicil  [domiciUum  hahitationis)  will  be 
found  in  most  cases  to  furnish  the  most  safe,  convenient, 
and  least  prejudicial  rule,  at  least  in  regard  to  transac- 
tions and  property  out  of  the  country  of  the  birth  of 
the  party  [domicilium  originis)}  As  to  transactions  and 
property  within  the  country  of  his  birth,  the  policy  of 
most  nations  will  naturally  incline  them  to  hold  their 

^  See  1  Burge,  Comment,  on  Col.  and  For.  Law,  P.  I,  ch.  3,  ^  3,  p. 
129  to  p.  134. 


Oil.  IV.]  CAPACITY  OF  PERSONS.  103 

own  laws  conclusive  over  their  own  subjects,  wherever 
they  may  be  domiciled,  so  far  as  regards  their  minority 
and  majority,  and  their  other  capacity,  or  incapacity,  to 
do  acts. 

§  74.  Illustrations  may  be  easily  found  to  confirm 
these  remarks  in  the  actual  jurisprudence  of  many 
countries.  Thus,  (as  we  have  seen,)  ^  Pardessus,  while 
he  contends,  that  the  law  of  France,  as  to  personal  ca- 
pacity and  incapacity  generally,  ought  to  prevail  as  to 
French  subjects,  wherever  they  reside,  abroad,  or  at 
home,  at  the  same  time  admits,  that  it  ought  not  to 
govern  in  relation  to  certain  particular  disabilities. 
Thus,  he  thinks,  that  the  law  of  France,  which  forbids 
nobles,  or  persons  of  official  dignity,  to  sign  bills  of 
exchange  or  other  engagements,  by  which  the  bodies 
of  the  parties  are  liable  to  an  arrest  for  a  breach  of  the 
contract,  ought  not  to  extend  to  the  like  acts  of  the 
same  persons  done  in  other  countries.^  For,  although 
it  may  be  urged,  that  it  is  a  personal  law,  which  follows 
the  person  everywhere,  as  in  the  case  of  a  minor,  or  of 
a  married  woman  under  the  marital  power,  and  every 
person  is  bound  to  know  the  state  and  condition  of 
the  person,  with  whom  he  contracts  ;  yet,  he  contends, 
that  the  rule  ought  not  to  be  applied,  except  to  the 
universal  state  of  the  person,  such  as  that  of  a  minor 
or  a  major,  or  of  a  woman  subject  to,  or  free  from  the 
marital  power.  For,  he  adds,  all  nations  are  agreed  in 
fixing  the  capacity  to  contract  to  a  certain  age,  and  in 
placing  women  in  dependence   upon  their  husbands.^ 


1  Ante,  ^  68. 

2  Pardessus,  de  Droit.  Comm.  Vol.  5,  art.  1483,  p.  250. 

3  Pardessus,  Vol.  5,  P.  6,  tit.  7,  ch.   2,  §  1,  art.  1483,  p.  250  ;  Henry 
on  Foreign  Law,  App.  222. 


104  CONFLICT    OF   LAWS.  [CH.    IV. 

Every  one  will  at  once  perceive  how  exceedingly  loose 
the  distinction  is,  for  which  Pardessus  contends,  and 
how  unsatisfactory  his  reasoning,  by  which  this  excep- 
tion is  attempted  to  be  maintained.  The  objection  to 
the  reasoning  is,  that  if  well  founded,  the  argument 
from  inconvenience  would  carry  it  much  further  ;  and 
persons  dealing  with  others  may  require  proof  of  their 
majority,  or  of  their  special  authority  to  contract,  if 
they  are  minors,  or  whether  they  are  married  or  not ; 
and  in  both  cases  may  guard  against  false  statements, 
by  requiring  a  guaranty.  On  the  contrary,  these  spe- 
cial prohibitions,  on  account  of  a  certain  quality  or 
dignity,  are  more  arbitrary.  They  are  founded  less  in 
general  public  utility,  and  ought  not,  therefore,  to  be 
invoked  in  aid  of  the  party.  At  least,  the  exception 
ought  not  to  be  admitted,  except  between  subjects  of 
the  same  State,  or  unless  the  incapacity  of  the  person, 
and  the  nullity  of  the  obligation  by  the  law,  were 
known  at  the  time  of  the  contract  by  the  other  party.^ 
§  75.  Now,  it  so  happens,  that,  what  Pardessus  (and 
many  other  jurists  are  certainly  of  the  same  opinion) 
supposed  to  be  very  clear  doctrine,  has  been  directly 
overturned,  and  the  contrary  doctrine  has  been  held  by 
the  Supreme  Court  of  Louisiana.  That  Court,  in  a  very 
learned  opinion,  have  said  ;  "  The  writers  on  this  sub- 
ject, with  scarcely  an  exception,  agree,  that  the  laws  or 
statutes,  which  regulate  minority  and  majority,  and 
those,  which  fix  the  state  or  condition  of  man,  are  per- 
sonal statutes,  and  follow,  and  govern  him,  in  every 
country.  Now,  supposing  the  case  of  our  law,  fixing 
the  age  of  majority  at  twenty-five,  and  the  country,  in 


1  Ibid. 


CH.  IV.]  CAPACITY    OF   PERSONS.  105 

which  a  man  was  born  and  lived  previous  to  his  coming 
here,  placing  it  at  twenty-one  ;  no  objection  could  per- 
haps be  made  to  the  rule  just  stated.  And  it  may  be, 
and,  we  believe,  would  be  true  that  a  contract,  made 
here  at  any  time  between  the  two  periods  already 
mentioned,  would  bind  him.  But,  reverse  the  facts  of 
the  case  ;  and  suppose,  as  is  the  truth,  that  our  law 
placed  the  age  of  majority  at  twenty-one  ;  that  twenty- 
five  was  the  period,  at  which  a  man  ceased  to  be  a  mi- 
nor in  the  country,  where  he  resided ;  and  that,  at  the 
age  of  twenty-four,  he  came  into  this  State,  and  en- 
tered into  contracts  ;  would  it  be  permitted  that  he 
should  in  our  courts,  and  to  the  demand  of  one  of  our 
citizens  plead,  as  to  protection  against  his  engagements, 
the  laws  of  a  foreign  country,  of  which  the  people  of 
Louisiana  had  no  knowledge  ?  And  would  we  tell 
them,  that  ignorance  of  foreign  laws,  in  relation  to  a 
contract,  made  here,  was  to  prevent  him  from  enforcing 
it,  though  the  agreement  was  binding  by  those  of  their 
own  State  ?     Most  assuredly  we  would  not."  ^ 

§  76.  The  case  first  put  seems  founded  upon  a  prin- 
ciple entirely  repugnant  to  that,  upon  which  the  second 
rests.     In  the  former  case,  the  law  of  the  place  of  the 


1  Saul  V.  His  Creditors,  17  Martin,  R.  596  to  598,  Tiie  opinion  of  the 
Court  was  delivered  by  Mr.  Justice  Porter.  See  also  Andrews  v.  His 
Creditors,  11  Louis.  R.  464,  476.  —  A  like  doctrine  was  held  by  the  same 
Court  in  another  case.  The  Court  on  that  occasion  said  ;  "A  foreigner 
coming  into  Louisiana,  who  was  twenty-three  years  old,  could  not  escape 
from  a  contract  with  one  of  our  citizens,  by  averring,  that,  according  to 
the  laws  of  the  country  he  left,  he  was  not  a  major  until  he  reached  the 
age  of  twenty-five."  Baldwin  v.  Gray,  16  Martin,  R.  192,  193.  See 
also  Fergusson  on  Divorce,  App'x,  p.  276  to  363  ;  Post,  §  82.  Hertius,  De 
Collisione,  Tom.  1,  ^  4,  n.  5,  p.  120, 121 ;  Id.  p.  173,  174,  edit.  1716.  Gro- 
tius  seems  to  have  been  of  opinion,  that  the  lex  loci  contractus  ought  to 
govern  in  cases  of  minority.     Grotius,  B.  2,  ch,  11,  ^  5. 


106  CONFLICT    OF   LAWS.  [CH.  IV. 

domicil  of  the  party  is  allowed  to  prevail,  in  respect  to 
a  contract  made  in  another  country  ;  in  the  latter  case, 
the  law  of  the  place,  where  the  contract  is  made,  is 
allowed  to  govern,  without  any  reference  whatsoever 
to  the  law  of  the  domicil  of  the  party.  Such  a  course 
of  decision  certainly  may  be  adopted  by  a  government, 
if  it  shall  so  choose.  But,  then,  it  would  seem  to 
stand  upon  mere  arbitrary  legislation  and  positive  law, 
and  not  upon  principle.  The  difficulty  is  in  seeing, 
how  a  court,  without  any  such  positive  legislation,  could 
arrive  at  both  conclusions.  General  reasoning  would 
lead  us  to  the  opinion,  that  both  cases  ought  to  be  de- 
cided in  the  same  way  ;  that  is,  either  by  the  law  of 
the  domicil  of  the  party,  or  by  that  of  the  place, 
where  the  contract  is  actually  made.  Many  foreign 
jurists   maintain  the  former   opinion ; '  some  the   lat- 


1  See  Livermore,  Dissert.  ^  17,  p.  32  to  §  56,  p.  57.  —  Mr.  Livermore 
denies  this  doctrine  of  the  Supreme  Court  of  Louisiana  to  be  correct,  and 
has  collected  in  the  place  cited  the  leading  authorities  in  favor  of  the  doc- 
trine, which  he  contends  is  the  true  one,  that  the  law  of  the  domicil  of  the 
person  ought  universally  to  prevail,  as  to  his  personal  capacity  or  incapacity. 
Among  the  authorities  in  its  favor,  he  enumerates  D'Argentre,  Bartolus, 
Rodenburg,  Jason,  and  Paulo  de  Castro.  Liverra.  Dissert.  §  21,  p.  34. 
D'A.rgentr6  Comm.  Leg.  Briton,  art.  218,  Gloss.  6,  n.  47,  48)  says  ; 
Quotiescunque  de  habilitate  aut  inhabilitate  personarura  quaeratur,  toties 
domicilii  leges  et  statuta  spectanda.  Nam  de  omni  personali  negotio,  Ju- 
dicis  ejus  cognitionem  esse,  cui  persona  subsit,  ut  quocunque  persona  abeat, 
ad  jus  sit,  quod  ille  statuerit.  Bartolus  puts  the  case,  whether,  if  a  filius- 
familias  (an  unemancipated  son)  is  allowed  by  the  local  law  to  make  a 
testament,  a  foreign  filius-familias  can  in  the  same  place  make  a  valid 
testament  ;  and  he  answers  in  the  negative.  Dico  quod  non  ;  quia  statuta 
non  possunt  legitimare  personam  sibi  non  subditam,  nee  circa  ipsam  perso- 
nam aliquid  disponere.  Bartolus,  Ad.  Cod.  Lib.  1,  tit.  1,  1.  1,  n.  25,  26. 
Dc  Castro  (as  cited  in  D'Argentr6  ubi  supra)  says,  that  a  statute  of  Mo- 
dena,  permitting  minors  to  contract  at  fourteen  years  of  age,  will  not  make 
valid  a  contract  at  Modena  by  a  minor  of  that  age  belonging  to  Bologna. 
Ratio  est,  quia  hie  abstract^  de  habilitate  personam,  et  universali  ejus  statu 


CH.  IV.]  CAPACITY  OF  PERSONS.  107 

ter.^  Perhaps  it  is  not  very  easy  to  decide,  which  rule 
would,  on  the  whole,  be  most  convenient  for  any  nation 
to  adopt.  It  may  be  said,  that  he,  who  contracts  with 
another,  ought  not  to  be   ignorant  of  his   condition  ; 


quEcratur,  ideoque  persona  a  statute  domicilii  efficiatur.  Liverrn.  Diss. 
<^  21,  p.  34,  35,  ^  25,  p.  37.  Burgundus,  Christinaeus,  Grotius,  and  De 
Wesel,  appear  to  hold  the  same  opinion.  See  Voet,  ad  Pand.  Lib.  1,  tit. 
4,  p^  2,  n.  7;  Burgundus,  Tract.  1,  n.  8,  34.  Rodenburg  is  still  more 
full  to  the  same  point.  Rodenb.  de  Diversit.  Statut.  tit.  2,  ch.  1,  n.  1  ;  2 
Boullenois,  App.  p.  11,  cited  also  Liverm.  Diss.  ^  31,  p.  40,41.  See  also 
Hertii  Opera,  Tom.  1,  De  Collis.  §  4,  n.  8. 

1  Mr.  Livermore  says,  that  Huberus  alone  is  in  favor  of  the  latter  opi- 
nion. I  draw  the  conclusion,  that  P.  Voet  (Voet,  de  Statut.  6  4,  ch.  2,  n. 
6,  p.  137,  138,  edit.  1661,)  and  J,  Voet  (Voet,  ad  Pand.  Lib.  1,  tit.  4,  p\ 
2,  n.  7,)  entertain  the  same  opinion.  There  are  probably  many  other  ju- 
rists, who  are  on  the  same  side.  It  is  very  certain,  that  the  rule,  that 
either  the  law  of  the  domicil  of  origin,  or  the  law  of  the  actual  domicil,  or 
even  the  \di.\v  of  the  lex  loci  contractus,  is  to  govern  in  all  cases,  has  never 
been  adopted  in  the  English  courts.  The  rule  of  the  actual  domicil,  or 
the  place  of  the  contract,  has  been  admitted  generally  ;  but  does  not  (as 
we  shall  presently  see)  universally  govern.  Mr.  Burge  has  propounded 
the  same  doctrine  as  the  Supreme  Court  of  Louisiana,  and  said  ;  "  In  a 
conflict  between  the  personal  law  of  the  domicil  and  the  personal  law  of 
another  place  at  variance  with  it,  that  of  the  domicil  prevails.  But  the 
preceding  rule  admits  of  some  qualification.  It  is  not  to  be  applied,  when 
it  would  enable  a  person  to  avoid  a  contract,  which  he  was  competent  to 
make  by  the  personal  law  of  the  place,  in  which  he  made  it,  although  he 
was  incompetent  by  the  personal  law  of  his  domicil.  Thus,  if  a  person, 
whose  domicil  of  origin  was  in  Spain,  where  he  does  not  attain  his  major- 
ity until  his  twenty-fifth  year,  should  at  the  age  of  twenty-three,  enter 
into  a  contract  in  England,  or  any  other  place,  where  his  minority  ceases 
at  twenty-one,  he  would  not  be  permitted  to  avoid  his  contract  by  alleging 
that  he  was  a  minor,  and  incompetent  to  contract,  according  to  the  law  of 
Spain.  The  maxim,  that  every  man  is  bound  to  know  the  laws  of  a  coun- 
try, in  which  he  enters  into  a  contract,  is  of  universal  application,  and  is 
perfectly  just  and  reasonable  ;  because,  it  is  in  his  power  to  obtain  that 
knowledge  ;  but  the  maxim,  "Qui  cum  alio  contrahit,  vel  est,  vel  debet 
esse  non  ignarus  conditionis  ejus,"  cannot  be  applied  to  those  cases,  in 
which  the  condition  depends  on  facts  and  law,  to  which  he  is  a  perfect 
stranger.  1  Burge,  Comm.  on  Col.  and  For.  Law,  R.  41,  ch.  1,  p.  27, 
28.     See  Post,  ^  79  to  ^  82. 


108  CONfLICT    OF   LAWS.  [CH.  IV. 

Qui  cum  alio  contrahit,  vel  est,  vcl  esse  debet,  non  ignarus 
conditionis  ejus}  But  this  rule,  however  reasonable  in 
its  application  to  the  condition  of  a  person,  as  fixed  by 
the  law  of  the  country,  where  he  is  domiciled,  is  not  so 
clear  in  point  of  convenience  or  equity,  when  applied 
to  the  condition  of  a  person,  as  fixed  by  the  law  of  a 
foreign  country.  How  are  the  inhabitants  of  any  coun- 
try to  ascertain  the  condition  of  a  stranger  dwelling 
among  them,  as  fixed  by  the  law  of  a  foreign  country, 
where  he  was  born,  or  had  acquired  a  new  domicil  ? 
Even  courts  of  justice  do  not  assume  to  know,  what 
the  laws  of  a  foreign  country  are  ;  but  require  them  to 
be  proved.  How  then  shall  private  persons  be  pre- 
sumed to  have  better  means  of  knowledge  ?  On  the 
other  hand,  it  may  be  said  with  great  force,  that  con- 
tracts ought  to  be  governed  by  the  law  of  the  country 
where  they  are  made,  as  to  the  competence  of  the  par- 
ties to  make  them,  and  as  to  their  validity ;  because 
the  parties  may  well  be  presumed  to  contract  with  refer- 
ence to  the  laws  of  the  place,  where  the  contract  is 
made,  and  is  to  be  executed.  Such  a  rule  has  certainty 
and  simplicity  in  its  application.  It  ought  not,  there- 
fore, to  be  matter  of  surprise,  if  the  country  of  the 
party's  birth  should  hold  such  a  contract  valid  or  void, 
according  to  its  own  law,  and  that,  nevertheless,  the 
country,  where  it  is  made  and  to  be  executed,  should 
hold  it  valid  or  void,  according  to  its  own  law.  It  has 
been  well  observed  by  an  eminent  judge,  that  "  with 
respect  to  any  ignorance  arising  from  foreign  birth  and 
education,  it  is  an  indispensable  rule  of  law,  as  exer- 
cised in  all  civilized  countries,  that  a  man  who  con- 


1  Dig.  Lib.  50,  tit.  17, 1.  19.     See  Livermore,  Diss.  p.  38. 


CH.  IV.]  CAPACITY    OF    PERSONS.  109 

tracts  in  a  country,  engages  for  a  competent  knowledge 
of  the  law  of  contracts  of  that  country.  If  he  rashly 
presumes  to  contract  without  such  knowledge,  he  must 
take  the  inconveniences  resulting  from  such  ignorance 
upon  himself  ;  and  not  attempt  to  throw  them  upon  the 
other  party,  who  has  engaged  under  a  proper  know- 
ledge and  sense  of  the  obligation,  which  the  law  would 
impose  upon  him  by  virtue  of  that  engagement."  ^ 

§  77.  In  another  case,  decided  at  an  earlier  period, 
the  Supreme  Court  of  Louisiana  adopted  the  doctrine, 
that  the  laws  of  the  domicil  of  origin  ought  to  govern 
the  state  and  condition  of  the  party,  whether  as  major 
or  as  minor,  into  whatever  country  the  party  removes. 
But  the  decision  may,  perhaps,  be  thought  to  rest  on 
its  own  peculiar  circumstances.     The    case  was   this. 
The  plaintiff  in  the  suit  (a  female)  was  born  in  Louis- 
iana in  1802,  and  the  laws  of  the  State  at  that  time 
fixed  the  age  of  majority  at  twenty-five  years.     In  the 
year  1808,  the  period  of  majority  in  the  State  was 
altered  to  twenty-one  years.      The  plaintiff  in  1827 
(when  the  suit  was  brought)  was,  and  for  several  years 
before  had  been,  a  Spanish  subject,  and  a  resident  in 
Spain,  where  minority  does  not  cease  until  twenty-five 
years.    The  suit  having  been  brought  by  her  to  recover 
her  share  in  the  succession  to  her  grandmother,  in  the 
Courts  of  Louisiana,  before  she  was  twenty-five,  the 
question  arose,  whether  she  was  competent   to  main- 
tain the  suit ;  and  that  turned  upon  another  question, 
whether  she  was  to  be  deemed  a  minor,  or  not.     The 
Court  upon  that  occasion  decided,  that  she  was  to  be 


1  Lord  Stowell,  in  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.  R.  61  ; 
Ante,  ^  75  ;  Post,  §  82. 

CONFL.  10 


110  CONFLICT    OF    LAWS.  [CH.    IV. 

deemed  a  major,  as  she  was  then  over  twenty-one  years 
of  age,  although  not  twenty-five.  Mr.  Justice  Porter, 
in  delivering  the  opinion  of  the  Court,  said  ;  "  The 
general  rule  is,  that  the  laws  of  the  domieil  of  origin 
govern  the  state  and  condition  of  the  minor,  into  what- 
ever country  he  removes.  The  laws  of  Louisiana, 
therefore,  must  determine  at  what  period  the  plaintiff 
became  of  age ;  and  by  them  she  was  a  major  at 
twenty-five.  Admitting  that  her  removal  into  another 
country,  before  the  alteration  of  our  law,  would  exempt 
her  from  its  operation,  and  that  her  state  and  condition 
were  fixed  by  the  rules  prevailing  in  the  place  where 
she  was  born  at  the  time  she  left  it,  a  point  by  no 
means  free  from  difficulty,  no  proof  has  been  given, 
that  the  plaintiff  was  taken  out  of  Louisiana  before  the 
change  made  in  1808.  And  as  the  defendant  by  plead- 
ing the  minority  assumed  the  affirmative,  it  was  her 
duty  to  establish  the  fact  on  which  the  exception  could 
be  sustained."  ^  The  question,  therefore,  did  not  here 
arise,  as  to  the  effect  of  any  contract,  made  in  Louisiana, 
(as  in  the  preceding  case,)  but  the  simple  question  of 
the  state  of  minority  or  majority,  or  the  competency  of 
the  party  to  maintain  a  suit  in  her  own  name,  as  being 
siii  juris.  The  Court  seem  to  have  acted  upon  the 
general  doctrine  that  the  capacity  of  the  party  did  not 
depend  upon  her  actual  domieil ;  but  upon  the  law  of 
her  domieil  of  origin.  But  it  is  difficult  to  perceive, 
why  the  same  rule  should  not  apply  to  a  case  of  con- 
tract, arising  under  the  like  circumstances ;  since  the 
capacity  or  incapacity  to  contract  would  depend  upon 
the  very  point,  whether  the  law  of  the  actual  domieil. 


1  Barrera  v.  Alpuente,  18  Martin,  R.  69. 


CHAP.  IV.]        CAPACITY  OF  PERSONS.  Ill 

or  that  of  the  domicil  of  origin,  or  that  of  the  place  of 
the  contract,  ought  to  govern  in  respect  to  capacity  or 
incapacity.  And  if  the  same  rule  would  apply,  it  is 
not  easy  to  reconcile  this  with  the  preceding  doctrine, 
unless  upon  the  ground,  that  the  courts  of  the  native 
domicil  ought  to  follow  their  own  law,  as  to  minority 
and  majority,  in  all  cases,  in  preference  to  any  other. 

§  78.  There  is  an  earlier  case  in  the  same  court,  in 
which  it  seems  to  have  been  incidentally  stated,  that, 
according  to  the  law  of  nations,  "  personal  incapacities, 
communicated  by  the  laws  of  any  particular  place, 
accompany  the  person  wherever  he  goes.  Thus,  he. 
who  is  excused  from  the  consequences  of  contracts  for 
want  of  age  in  his  country,  cannot  make  binding  con- 
tracts in  another."  ^  This  doctrine  is  certainly  at  vari- 
ance with  that  maintained  by  the  same  court  at  other 
and  later  periods.^  It  is  somewhat  curious,  that  it  was 
avowed  in  the  case  of  what  is  called  a  runaway  mar- 
riage, celebrated  at  Natchez  in  Mississippi,  between  a 
young  man  and  a  young  woman,  a  minor  of  thirteen 
years  of  age,  both  of  them  being  at  the  time  domiciled 
in  Louisiana,  without  the  consent  of  her  parents ;  and 
which  marriage  would  seem  to  have  been  void,  without 
such  consent,  by  the  law  of  Louisiana,  if  celebrated  in 
that  State.  It  was  not,  however,  the  main  point  in  the 
case ;  and  the  decision  itself  was  placed,  (as  we  shall 
hereafter  see,)  upon  a  far  broader  foundation.^ 

§  79.  In  respect  to  contracts  of  marriage,  the  English 
decisions  have  established  the  rule  that  a  foreign  mar- 


1  Le  Breton  v.  Fouchet,  3  Martin,  R.  60,  70  ;  S.  C.  post,  ^  180. 
~  Saul  r.  His  Creditors,   17  Martin,  R.  597,  598  ;  Baldwin  v.  Gray, 
16  Martin,  R.  192,  193. 
3  Post,  ^  180. 


112  CONFLICT   OF   LAWS.  [CH.  IV 

riage,  valid  according  to  the  law  of  the  place,  where 
celebrated,  is  good  everywhere  else.^  But  these  deci- 
sions have  not,  e  converso,  established,  that  marriages  of 
British  subjects,  not  good  according  to  the  law  of  the 
place,  where  celebrated,  are  universally,  and  under  all 
possible  circumstances,  to  be  regarded  as  invalid  in 
England.^  On  the  contrary.  Lord  Stowell  has  decided 
that  a  marriage  had,  under  peculiar  circumstances,  at 
the  Cape  of  Good  Hope,  during  British  occupation,  was 
valid,  although  not  in  conformity  to  the  Dutch  law, 
which  was  then  in  force  there.^  In  that  case  the 
husband  (an  Englishman)  was  a  person  entitled  by  the 
laws  of  his  own  country  to  marry  without  the  consent 
of  parents  or  guardians,  he  being  of  the  age  of  twenty- 
one  ;  but  by  the  Dutch  law  he  could  not  marry  without 
such  consent  until  he  was  thirty  years  of  age.  The 
lady  (an  Englishwoman)  was  under  the  age  of  nine- 
teen, her  father  was  dead,  her  mother  had  married  a 
second  husband,  and  she  had  no  guardian.  Upon  that 
occasion  Lord  Stowell  said  ;  "  Suppose,  the  Dutch  law 
had  thought  fit  to  fix  the  age  of  majority  at  a  still 
more  advanced  period  than  thirty,  at  which  it  then 
stood,  at  forty,  it  might  surely  be  a  question  in  an 
English  court,  whether  a  Dutch  marriage  of  two  British 
subjects,  not  absolutely  domiciled  in  Holland,  should 
be  invalidated  in  England  on  that  account;  or,  in  other 
words,  whether  a  protection,  intended  for  the  rights  of 


1  Ryan  v.  Ryan,  2  Phill.  Ecc.  R.  332  ;  Herbert  v.  Herbert,  3  Phill. 
Ecc.  R.  58  ;  S.  C.  2  Hagg.  Ecc.  R.  263,  271 ;  Lacon  v.  Higgins, 
3  Starkie,  R.  178  ;  S.  C.  1  Dovvl.  &  Ryl.  N.  P.  R.  38.  See  Ryan  & 
Mood.  R.  80. 

2  Ruding  V.  Smith,  2  Hagg.  Consist.  R.  390,  391 ;  Harford  u.  Higgins, 
Hagg.  Const.  R.  432  ;  Post,  ^  79,  note  1  ;  Post,  ^  118,  119. 

3  Ibid. 


CH.  IV.]  CAPACITY    OF   PERSONS.  113 

Dutch  parents,  given  to  them  by  Dutch  law,  should 
operate  to  the  annulling  a  marriage  of  British  subjects 
upon  the  ground  of  protecting  rights,  which  do  not 
belong  in  any  such  extent  to  parents  living  in  England, 
and  of  which  the  law  of  England  could  take  no  notice, 
but  for  the  severe  purpose  of  this  disqualification.  The 
Dutch  jurists  (as  represented  in  this  libel)  would  have 
no  doubt  whatever,  that  this  law  would  clearly  govern 
a  British  court.  But  a  British  court  might  think  that 
a  question,  not  unworthy  of  further  consideration,  be- 
fore it  adopted  such  a  rule  for  the  subjects  of  this 
country."  "In  deciding  for  Great  Britain  upon  the 
marriage  of  British  subjects,  they  (the  Dutch  jurists) 
are  certainly  the  best  and  only  authority  upon  the 
question,  whether  the  marriage  is  conformable  to  the 
general  Dutch  law  of  Holland ;  and  they  can  decide 
that  question  definitely  for  themselves  and  for  other 
countries.  But  questions  of  a  wider  extent  may  lie 
beyond  this ;  whe.ther  the  marriage  be  not  good  in 
England,  although  not  conformable  to  the  general 
Dutch  law ;  and  whether  there  are  not  principles  lead- 
ing to  such  a  conclusion.  Of  this  question,  and  of 
those  principles,  they  are  not  the  authorized  judges ; 
for  this  question  and  those  principles  belong  either  to 
the  law  of  England,  of  which  they  are  not  the  author- 
ized expositors  at  all,  or  to  the  jus  gentium,  upon  which 
the  courts  of  this  country  may  be  supposed  as  compe- 
tent as  themselves  ;  and  certainly,  in  the  case  of  British 
subjects,  much  more  appropriate  judges."^ 


1  Ruding  V.  Smith,  2  Hagg.  Consist.  R.  389,  390  ;  Post,  ^  118,  119.— 

That  there  are  other  cases  excepted  from  the  operation  of  foreign  law, 

seems  to  have  been  directly  held  by  Sir  George  Hay,  in  Harford  v.  Hig- 

gins,  2  Hagg.  Consist.   R.  423.     He  there  said;    "  I  do  not  mean,  that 

10* 


114  CONFLICT    OF    LAWS.  [CH.  IV. 

[79  a.  So  in  a  very  recent  case/  a  marriage  in 
New  South  Wales,  between  two  persons,  neither  of 
whom  were  Presbyterians,  before  a  minister  of  that 
persuasion,  contrary  to  the  provisions  of  a  local  act, 
(which  did  not,  however,  declare  such  marriage  a 
nullity,)  was  held  valid  in  England  ;  sufficient  at 
least  to  found  a  decree  of  divorce  in  the  English 
Courts.  And  in  a  still  later  case,^  a  marriage  in 
one  of  the  British  Provinces,  according  to  the  rites  of 
the  Church  of  England,  solemnized  by  a  priest  in  orders, 
in  the  parish  church  of  which  he  was  the  minister,  in 
pursuance  of  a  proper  license,  was  held  good  in  Eng- 
land, without  examining  the  point  of  its  validity,  ac- 
cording to  the  Lex  Loci,  for  it  was  the  duty  of  the  op- 
posing party,  to  plead  and  prove  that  such  marriage 
was  invalid.] 

§  80.  In  another  case,  where  two  British  subjects, 
being  minors,  and  in  France,  solely  for  purposes  of  edu- 
cation, intermarried,  it  was  held  by  the  court,  that  the 
marriage,  being  void  by  the  law  of  France,  was  a  mere 
nullity.^  The  Court  (Sir  Edward  Simpson)  said  ; "  The 
question  before  me  is  not,  whether  English  subjects  are 
to  be  bound  by  the  law  of  France ;  for  undoubtedly 
no  law  or  statute  in  France  can  bind  subjects  of  Eng- 


every  domicil  is  to  give  jurisdiction  to  a  foreign  country,  so  that  the  laws 
of  that  country  are  necessarily  to  obtain  and  attach  upon  a  marriage  solem- 
nized there.  For,  what  would  become  of  our  factories  abroad,  at  Leghorn, 
or  elsewhere,  where  the  marriage  is  only  by  the  law  of  England,  and 
might  be  void  by  the  law  of  that  country  1  Nothing  will  be  admitted  in 
this  court  to  affect  such  marriages,  so  celebrated,  even  where  the  parties 
are  so  domiciled."     Id.  432. 

1  Catterall  v.  Catterall,  1  Roberts.  580  ;  11  Jurist,  914  ;  S.  C.  9  Jurist, 
951  ;  1  Roberts.  304. 

2  Ward  V.  Dey,  1  Roberts.  759. 

3  Scrimshire  v.  Scrimshire,  2  Hagg.  Consist.  R.  395. 


CH.  IV.]  CAPACITY  OF  PERSONS.  115 

land,  who  are  not  under  its  authority.     Nor  is  the  con- 
sequence of  pronouncing  for  or  against  the  marriage 
with  respect  to  civil  rights  in  England  to  be  considered 
in  determining  this  case.     The  only  question  before  me 
is,  whether  this  be  a  good  or  bad  marriage  by  the  law 
of  England.     On  this  point  I  apprehend,  that  it  is  the 
law  of  this  country  to  take  notice  of  the  laws  of  France, 
or  of  any  foreign  country  in  determining  upon  mar- 
riages of  this  kind  ;  and  I  am  inclined  to  think  it  is  not 
good.     The  question  being  in  substance,  whether  by 
the  law  of  this  country  marriage  contracts  are  not  to 
be  deemed  good  or  bad  according  to  the  laws  of  the 
country,  in  which  they  are  formed ;  and  whether  they 
are  not  to  be  construed  by  that  law.     If  such  be  the 
law  of  this  country,  the  rights  of  English  subjects  can- 
not be  said  to  be   determined  by  the  laws  of  France, 
but  by  those  of  their  own  country,  which  sanction  and 
adopt  this  rule  of  decision.     By  the  general  law,  all 
parties  contracting  gain  a  forum  in  the  place,  where 
the  contract  is   entered   into.     All  our  books  lay  this 
down  for  law  ;  "  It  is  needless  at  present  to  mention 
more  than  one.     Gay  11,  (Lib.  2,  obs.  123,)  says ;  In  con- 
tradihus  locus  contractus  considerandus  sit.      Quoties  enim 
statiittim  2^f'i^icipciliter  halilitat,  vet  inhahilitat  contractum, 
quoad  solemnitates,  semper  attenditiir  locus,  in  quo  talis  con- 
tractus celehratur,  et  ohligat  etiam  non  siihditum"     And 
again,  (Lib.  2,  obs.  36.)      Qiiis  forum  in  loco  contractus 
sortitur,  si  ihi  loci,  ubi  contraxit,  reperiatur  ;  non  tamen 
ratione  contractus,  aut  raiione  rei,  quis  subditus  dicitur  illius 
loci,  uhi  contraxit,  aut  res  sita  est  ;  quia   aliud  est  forum 
sortiri,  et  aliud  suhditum  esse.     Constat  unumquemque  svh- 
jici  jurisdictioni  judicis,  in  eo  loco  in  quo  contraxit.     This 
is  according  to  the  text  law,  and  the  opinion  of  Donel- 
lus  and  other  commentators.     There  can  be  no  doubt, 


116  CONFLICT    OF   LAWS.  [CH.  IV. 

then,  that  botli  the  parties  in  this  case  obtained  a  fo- 
rum, by  virtue  of  the  contract  in  France.  By  entering 
into  the  marriage  there,  they  subjected  themselves  to 
have  the  validity  of  it  determined  by  the  laws  of  that 
country."  ^  And  he  afterwards  proceeded  to  add  ; 
"  This  doctrine  of  trying  contracts,  especially  those  of 
marriage,  according  to  the  laws  of  the  country,  where 
they  were  made,  is  conformable  to  what  is  laid  down  in 
our  books,  and  what  is  practised  in  all  civilized  coun- 
tries, and  what  is  agreeable  to  the  law  of  nations,  which 
is  the  law  of  every  particular  country,  and  taken  no- 
tice of  as  such."  ^ 

§  80  a.  The  learned  judge  proceeded  to  cite  the 
opinions  of  civilians  to  the  same  precise  effect ;  and  he 
afterwards  concluded  with  these  remarks  ;  "  Why  may 
not  this  Court  then  take  notice  of  foreign  laws,  there 
being  nothing  illegal  in  doing  it  ?  Erom  the  doctrine 
laid  down  in  our  books  —  the  practice  of  nations  —  and 
the  mischief  and  confusion,  that  would  arise  to  the  sub- 
jects of  every  country,  from  a  contrary  doctrine,  I  may 
infer,  that  it  is  the  consent  of  all  nations,  that  it  is  the 
jus  gentium,  that  the  solemnities  of  the  different  nations 
with  respect  to  marriages  should  be  observed,  and  that 
contracts  of  this  kind  are  to  be  determined  by  the  laws 
of  the  country,  where  they  are  made.  If  that  princi- 
ple is  not  to  govern  such  cases,  what  is  to  be  the  rule, 
where  one  party  is  domiciled,  and  the  other  not?  The 
jus  gentium  is  the  law  of  every  country,  and  is  obliga- 
tory on  the  subjects  of  every  country.  Every  country 
takes  notice  of  it ;  and  this  Court,  observing  that  law 


1  Scrimshire  v.  Scrimshire,  2   Hagg.  Consist.   R.  p.  407,  408.     See 
Kent  V.  Burgess,  11  Simons,  R.  361. 

2  Scrimshire  v.  Scrimshire,  2  Hagg.  Consist.  R.  412. 


CH.  IV.]         CAPACITY  OF  PERSONS.  117 

in  determining  upon  this  case,  cannot  be  said  to  deter- 
mine English  rights  by  the  laws  of  France,  but  by  the 
law  of  England,  ot  which  the  fits  gentium  is  part.^  All 
nations  allow  marriage  contracts.  They  are  juris  gen- 
tium ;  and  the  subjects  of  all  nations  are  concerned  in 
them  ;  and  from  the  infinite  mischief  and  confusion, 
that  must  necessarily  arise  to  the  subjects  of  all  na- 
tions with  respect  to  legitimacy,  successions,  and  other 
rights,  if  the  respective  laws  of  different  countries  were 
only  to  be  observed,  as  to  marriages  contracted  by  the 
subjects  of  those  countries  abroad,  all  nations  have  con- 
sented, or  must  be  presumed  to  consent,  for  the  com- 
mon benefit  and  advantage,  that  such  marriages  should 
be  good  or  not,  according  to  the  laws  of  the  country 
where  they  are  made.  It  is  of  equal  consequence  to 
all,  that  one  rule  in  all  these  cases  should  be  observed 
by  all  countries  ;  that  is,  the  law  of  the  countries 
where  the  contract  is  made.  By  observing  this  law  no 
inconvenience  can  arise  ;  but  infinite  mischief  will 
ensue,  if  it  is  not."  ^  Again  —  "  If  countries  do  not 
take  notice  of  the  laws  of  each  other  with  respect  to 
marriages,  what  would  be  the  consequence,  if  two  Eng- 
lish persons  should  marry  clandestinely  in  England, 
and  that  should  not  be  deemed  a  marriage  in  France  ? 
Might  not  either  of  them,  or  both,  go  into  France  and 
marry  again,  because  by  the  French  law  such  a  mar- 
riage is  not  good  ?  And  what  would  be  the  conclusion 
in  such  a  case  ?  Or  again  ;  suppose  two  French  sub- 
jects, not  domiciled  here,  should  clandestinely  marry, 
and  there  should  be  a  sentence  for  the  marriage  ;  un- 


1  Scrimshire  v.  Scrimshire,  2  Hagg.  Consist.  R.  p.  41G,  417. 

2  1(1.416,417,418. 


118  CONFLICT    OF    LAWS.  [CH.  IV. 

doubteclly  the  wife,  though  French,  would  be  entitled 
to  all  the  rights  of  a  wife  by  our  law.  But  if  no  faith 
should  be  given  to  that  sentence  in  France,  and  the 
marriage  should  be  declared  null,  because  the  man  was 
not  domiciled ;  he  might  take  a  second  wife  in  France, 
and  that  wife  would  be  entitled  to  legal  rights  there, 
and  the  children  would  be  bastards  in  one  country,  and 
lesitimate  in  the  other."  So  that,  in  cases  of  this  kind, 
the  matter  of  domicil  makes  no  sort  of  difference  in 
determining  them ;  because  the  inconvenience  to  soci- 
ety and  the  public  in  general  is  the  same,  whether  the 
parties  contracting  are  domiciled  or  not.  Neither  does 
it  make  any  difference,  whether  the  cause  be  that  of 
contract  or  marriage ;  for  if  both  countries  do  not  ob- 
serve the  same  law,  the  inconveniences  to  society  must 
be  the  same  in  both  cases.  And  as  it  is  of  consequence 
to  the  subjects  of  both  countries,  and  to  all  nations, 
that  there  should  be  one  rule  of  determining  in  all  na- 
tions on  contracts  of  this  kind,  it  is  to  be  presumed, 
that  all  nations  do  consent  to  determine  on  these  con- 
tracts, by  the  laws  of  the  country,  where  they  are 
made  ;  as  such  a  rule  would  prevent  all  the  inconven- 
iences that  must  necessarily  arise  from  judging  by  dif- 
ferent laws,  and  is  attended  by  no  manner  of  inconven- 
ience, but  is  for  the  advantage  of  the  subjects  of  all 
nations."  ^ 

§  81.  Here,  then,  we  have  a  doctrine  laid  down  as 
the  rule  of  the  Jus  gentium,  at  least,  as  it  is  understood 
and  recognized  in  England,  in  regard  to  contracts 
generally,  and   especially   in   regard   to    contracts    of 


1  Scrimshire  v.  Scrimshire,  2  Hagg.  Consist.  R.  418,  419.  See  Lord 
Meadovvbank's  Opinion,  Fergusson  on  INIarr.  and  Divorce,  Appendix, 
p.  3G1,  362. 


CH.  IV.]         CAPACITY  OF  PERSONS.  119 

marriage,  very  different  from  the  rule,  which  we  have 
seen  laid  down  by  many  foreign  jurists,  that  the  law 
of  the  domicil  of  origin,  or  the  law  of  the  actual  domicil, 
is  of  universal  obligation  as  to  the  capacity,  state,  and 
condition  of  persons.^  The  same  doctrine  has  been 
formally  promulgated  upon  other  occasions  by  the 
English  Courts.^  In  a  grave  case  of  extraordinary  in- 
terest,^ which  turned  upon  the  validity  of  a  Scotch 
marriage,  where  one  of  the  parties  was  an  English 
minor,  Lord  Stowell  said ;  "  Being  entertained  in  an 
English  court,  it  (the  case  then  before  him)  must  be 
adjudicated  according  to  the  principles  of  English  law 
applicable  to  such  a  case.  But  the  only  principle 
applicable  to  such  a  case  by  the  law  of  England  is, 
that  the  validity  of  the  marriage  rites  must  be  tried  by 
reference  to  the  law  of  the  country,  where,  if  they  exist 
at  all,  they  had  their  origin."  ^  • 

§  82.  In  regard  to  other  contracts  made  by  minors,  a 
similar  rule  has  prevailed.  In  a  case,  where  money 
had  been  advanced  for  a  minor  during  his  stay  in 
Scotland  (who  seems  to  have  had  his  general  domicil  in 
England,)  it  was  held  by  Lord  Eldon,  that  the  question, 
whether  in  an  English  court  a  recovery  could  be  had 
for  the  money  so  advanced,  depended  upon  the  law  of 
Scotland  ;  for  the  general  rule  was  that  the  law  of  the 
place,  where  the  contract  is  made,  must  govern  the 


J  Ante,  (5>  51  to  68. 

2  Doe  d.  Birthwhistle  v.  Vardill,  5  B.  and  Cresw.  438,  452,  453  ; 
S.  C.  7  Clark  &  Finn.  895. 

3  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.  R.  54. 

4  Id.  58,  59;  S.  P.  Kent  v.  Burgess,  II  Simons,  R.  361.  See  also 
Conway  v.  Beasley,  SHagg.  Ecc.  R.  639  ;  Middleton  v.  Janverin,  2  Hagg. 
Consist.  R.  437,  446. 


120  CONFLICT    OF   LAWS.  [CH.    IV. 

contract.'  This  also  seems  to  be  a  just  inference  from 
the  doctrine  maintained  by  Lord  Stowell,  in  the  case 
of  a  contract  of  marriage.^ 

§  82  a.  Upon  this  point  there  is  a  diversity  of 
opinion  among  foreign  jurists.^  Some  of  them  are 
strongly  inclined  to  act  upon  the  doctrine  of  the  Ro- 
man law,  as  applicable  to  this  subject.  Aid  si  non 
appareat,  quid  actum  est,  erit  conseqiiens,  lit  id  seqiiamiir, 
quod  in  regione  in  qua  actum  est  frequentatur^  Dumoulin 
is  supposed  to  have  adopted  this  doctrine  ;  but  it  is  far 
from  being  certain,  that  he  intended  by  his  language 
to  embrace  this  case.  In  concernentihus  contractibvs  et 
emergentihus  tempore  contractus  inspici  debet  locus,  in  quo 
contrahitur.^  Paul  Voet  puts  the  doctrine  thus.  Quid, 
si  de  contractihus  proprie  dictis,  et  quidem  eoriini  solemnihus 
contcniio ;  quis  locus  spectaUtur  ?  An  domicilii  contra- 
hentis,  an  loci,  ubi  quis  contraJiit.  Respondeo  affirmate. 
Posterius.  Quia  censetur  quis  semet  contraliendo,  legihiis 
istius  loci,  iiU  contrahit,  etiam  ratione  solemnium  subjicere 
voluisse.     Ut  quemadmodimi  loci  consuetudo  subintrat  con- 


1  Male  V.  Roberts,  3  Esp,  N.  P.  R.  163.  See  also  Thompson  v. 
Ketcham,  8  Johns.  R.  189  ;  Grotius,  Lib.  2,  ch.  11,  ^  5.  See  also  Dal- 
rymple  v.  Dalrymple,  2  Hag;^.  Consist.  R.  60,  01  ;  ante,  ^  21,  25,  p.  34, 
^  75,  note  (1)  37. 

2  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.  R.  61 ;  ante,  ^  80. 

3  Post,  ^  368. 

4  Dig.  Lib.  50,  tit.  17, 1.  34  ;  post,  §  270. 

5  Molin.  Tom.  1,  Tit.  1,  De  feud.  ^  12,  gloss.  7,  ^  37.  —  In  another 
place  Dumoulin  says,  after  adverting  to  the  fact,  that  personal  laws  affect 
subjects  and  not  foreigners  ;  Quamvis  is,  qui  datus  est  tutor  vel  curator  a 
suo  competenti  judice  sit  inhabilitatus  propter  tutelam  et  coram,  ubique 
locorum  pro  bonis  ubicumque  sitis.  Quia  non  est  in  vim  statuti  solius, 
sedin  vim  juris  communis,  et  per  passivam  interpretationem  legis,  qua? 
locum  habet  ubique.  Molin.  In  Cod.  Lib.  1,  tit.  1,  torn.  3,  p.  556.  See 
1  Burge,  Comment,  on  Col.  and  For.  Law,  P.  1,  ch.  3,  ^  3,  p.  129,  130  ; 
post,  ^  294  ;  1  BouUenois,  Observ.  23,  p.  463,  461. 


CH.  IV.]  CAPACITY  OF  PERSONS.  121 

tr  actum,  ej usque  est  dedarativa ;  it  a  etiam  loci  statutum} 
From  the  other  known  doctrine  of  Paul  Voet,  that  per- 
sonal laws  have  no  extra-territorial  operation,  we  see  at 
once  that  he  meant  to  apply  his  statement  to  laws  of 
personal  capacity  and  incapacity.^  It  has  been  sup- 
posed, that  Christinaeus  and  Bartolus  entertain  a  simi- 
lar opinion.  But  their  language  does  not  necessarily 
lead  to  that  conclusion,  since  the  place  of  the  contract, 
spoken  of  by  them,  may  mean  the  place  also  of  the 
domicil  of  origin  of  the  minor.^  Grotius,  however,  is 
more  explicit  to  the  purpose.  Leges  civiles  (says  he) 
justa  ratione  motce,  quasdam  promissiones  piipillorum  ac 
minonim  irritas  pronimciant.  JSed  hi  effectus  sunt  proprii 
legis  civilis,  ac  proinde  cum  jure  naturce  ac  gentium  nihil 
hahent  commune ;  nisi  quod  quihiis  locis  oltinent,  ibi  eas 
servare  nattirale  est.  Qiice  etiam  si  peregrinus  cum  cive 
paciscatur,  tenelitur  illis  legihus ;  quia  qui  in  loco  aliqiio 
contrahit,  tanquam  suhditus  temporarius  legihus  loci  suhji- 
citur^ 

§  83.  On  the  other  hand,  many  foreign  jurists,  (as 
we  have  seen,)  entertain  a  very  different  opinion  on 
this  very  point  of  the  capacity  of  a  person  to  contract 
in  another  country,  when  he  is  disabled,  as  a  minor,  by 
the  law  of  his  own  country  and  domicil.^  Thus,  it  has 
been  said  by  Di  Castro,  and  approved  by  D'Argentre, 
that  where  the  law  of  Modena  enabled  a  minor  of  four- 


1  P.  Voet,  de  Statut.  ^  9,  ch.  2,  n.  9,  p.  323,  edit.  1661  ;  post,  ^  261. 

2  P.  Voet,  de  Statut.  ^  4,  ch.  2,  n.  6,  p.  137,  edit.  1661. 

3  See  the  passages  cited  from  these  authors  in  1  Burge,  Comment. 
P.  l,ch.  4,  p.  130;  Christin.  Decis.  Vol.  1,  Decis.  183,  p.  155;  Bartolus, 
ad  Cod.  Lib.  1,  tit.  1,  1.  1,  n.  13,  20 ;  2  Boull.  Observ.  46,  p.  455,  456  ; 
post,  ^  299, 

4  Grotius,  De  Jure  Belli.  Lib.  2,  ch.  11,^5. 

5  Ante,  ^  51  to  68. 

CONFL.  11 


122  CONFLICT    OF   LAWS.  [CH.  IV. 

teen  years  of  age  to  contract,  that  would  not  enable  a 
minor  of  Bologna  of  the  same  age  to  make  a  valid  con- 
tract at  Modena.^  And  Rodenburg  asserts  the  same 
doctrine  in  the  most  emphatic  terms ;  in  which  he  is 
followed  by  Boullenois.^ 

§  84.  Bouhier  (as  we  have  seen^)  holds  to  the  doc- 


1  D'Argentr6,  Comm.  ad  Leg^es  Britonum,  art.  218,  gloss.  6,  n.  47,  48, 
cited  ante,  ^  76,  note,  and  also  in  Liverm.  Dissert,  p.  42,  ^  33  to  56  ; 
1  Froland,  M6m.  des  Statuts.  112,  156,  159. 

2  Rodenburg.  De  Div,  Stat.  tit.  2,  ch.    1,  §  1  ;  2  BouU.  App.  p.  11  ; 

1  Boullenois,  Obs.  16,  p.  200,  201,  204,  205  ;  Bouhier,  ch.  23,  n.  92  ; 
1  Froland,  Mem.  p.  112,  159  ;  2  Froland,  M6m.  p.  1576  to  p.  1582.  — 
The  language  of  Rodenburg  is ;  De  quibus  et  consimilibus  id  Juris  est,  ut 
quocunque  se  transtulerit  persona  statuto  loci  domicilii  ita  affecta,  habilita- 
tem  aut  inhabilitatem  ademptam  domi,  circuraferat  ubique,  ut  in  universa 
territoria  suum  Statutum  exerceat  effectum.  Apertius  rem  intuebimur  in 
exemplis.  TJltrajecti  sui  juris  efficiuntur  qui  vigesimum  aetatis  annum 
impleverint,  apud  Hollandos  contra,  ante  Tigesimum  quintum  rebus  suis 
nemo  intervenit.  Apud  utrumque  populorum  nupta  citra  viri  consensum 
a  rebus  gerendis  arcetur.  In  Regionibus,  quae  Jure  Romanorum  hie 
utuntur,  commerciis  gaudet  uxor  liberrime,  potestati  virili  non  supposita. 
Fac  autem  Ultrajectinum,  qui  vigesimum  quintum  aetatis  annum  necdum 
habuerit,  contrahere  in  Hollandia  :  aut  e  contra  Hollandiae  incolam  viges- 
imum jam  annum  egressum,  TJltrajecti:  aut  nuptam  nostratem  contrahere 
in  regione  Juris  scripti,  aut  e  contra.  Quocumque  modo  se  casus  habuerit, 
contrahentium  erit  respicere  ad  suum  cujusque  domicilii  locum,  impres- 
samque  ibidem  personse  qualitatem,  aut  ademptam  domiconiiitionem,  cujus 
ignarus  non  sit  oportet,  qui  cum  alio  volet  contrahere.  Quare  Hollandiae 
incola  major  TJltrajecti,  minor  apud  suos,  contrahit  apud  nostrates  invalide. 
Contra,  Ultrajectinus  lege  domicilii  major  contrahit  in  Hollandia  efficaci- 
ter,  ut  maxime  ex  more  regionis  istius  rerum  suarum  necdum  haberetur 
compos.  TJxores  domi  sub  maritorum  potestate  ita  constituta;,  ut  sine  iis 
nee  alienent  nee  contrahant,  nuUibi  locorum  hanc  incapacitatem  exuunt. 
Cum  mulieris  contra  Juri  scripto  obnoxiee  contractus,  apud  nos  celebratus, 
consistat  omnimodo.  Et  quidem  si  ad  personales  actus,  contractus  puta, 
personse  applicetur  habilitas,  Argentrei,  Burgundique,  (quos  Jure  praecipui 
hie  semper  nomino,)  caeterorumqu6  scribentium  placita  sat  consentiunt. 
See  ante,  §  51.     See  also  Liverm.  Dissert.  ^  21,  p.  34  to  §  34,  p.  43  ; 

2  BouU.  App.  11.     See  also  Foelix,  Conflict,  des  Lois  Revue  Etrangere 
et  FranQaise,  Tom.  7,  §  24,  p.  204  to  §  26,  p.  216. 

3  Ante,  ^  57  a. 


OH.  IV.]  CAPACITY  OF  PERSONS.  123 

trine,  that  the  capacity  and  incapacity  by  the  law  of 
the  domicil  extends  to  every  other  place ;  ^  hut  yet  he 
is  manifestly  startled,  when  it  is  applied  to  the  case  of 
marriages.  He  admits,  that  in  such  cases  it  is  com- 
monly held,  that  the  law  of  the  place,  where  the  mar- 
riage is  celebrated,  ought  to  prevail.^  But  he  insists, 
that  such  a  rule  ought  not  to  be  adopted  in  regard  to 
persons,  who  are  both  subjects  of  the  same  country, 
who  designedly  go  to  a  foreign  country  and  contract 
marriage  there,  in  order  to  evade  the  law  of  the  coun- 
try of  their  own  domicil.^  He  applies  also  similar  con- 
siderations to  the  case  of  an  unemancipated  son  or 
minor  belonging  to  one  country,  who,  finding  a  woman 
of  his  own  country  in  a  foreign  country,  marries  her 
there,  without  the  knowledge  of  his  parents,  holding, 
that,  under  such  circumstances,  the  marriage  ought  not 
to  be  held  valid.*  But  he  propounds  as  a  case  of  more 
difficulty,  where  such  a  person,  going  into  a  foreign 
country,  without  any  intention  of  marrying,  finds  there 
a  woman  of  his  own  country  to  his  liking,  whom  he 
seeks  in  marriage  and  espouses.  For,  if  such  a  mar- 
riage is  celebrated  according  to  the  usual  formalities  in 
that  country,  he  deems  it  valid,  as  being  done  in  good 
faith,  and  affirms,  that  the  parties  are  not  bound  to  follow 
the  laws  of  their  own  country.^  D'Argentre  states  the 
general  doctrine  in  the  following  manner.  "  When  the 
question  is,  as  to  the  right  or  capacity  of  any  person  to 


1  Bouhier,  Cout.  de  Bourg.  ch.  24,  i^  11,  p.  463  ;  post,  §  123. 

2  Bouhier,  Cout.  de  Bourg.  ch.  28,  ^  50,  60,  p.  556,  557. 

3  Bouhier,  Cout.  de  Bourg.  ch.  28,  ^  61,  p.  557. 

4  Bouhier,  Cout.  de  Bourg.  ch.  28,  §  62,  p.  557. 

5  Bouhier,  Cout.  de  Bourg.  ch.  38,  §  59  to  67,  p.  556,  557  ;  Id.  ch.  24, 
Hl>P-463. 


124  CONFLICT    OF   LAWS.  [CH.  IV. 

do  civil  acts  generally,  it  is  to  be  referred  to  the 
judge,  who  exercises  judicial  functions  in  the  place  of 
his  domicil ;  that  is  to  say,  to  whom  his  person  is  sub- 
ject, and  who  has  authority  so  to  pronounce  respecting 
him,  so  that  whatever  he  shall  promulgate,  adjudge,  or 
ordain  respecting  the  rights  of  persons,  ought  to  obtain, 
and  be  of  force,  in  every  place,  to  which  he  may  trans- 
fer himself,  on  account  of  this  authority  over  the  per- 
son." Qiiare  cum  de  personce  jure  aid  haUlitate  quceritur 
ad  actus  civiles,  in  imiversum  eajudicis  ejus  potestas  est,  qui 
domicilio  judicat,  id  est,  cui  persona  subjicitur,  qui  sic  de  eo 
statuere  potest,  ut  quod  edixent,  judicdrit  ordindrit  de  person- 
arum  jure,  ubicumque  oUineat,  quocumque  se  persona  contide- 
rit,  propter  afficentium  personm}  Froland  asserts  the  same 
doctrine  and  expressly  extends  it  to  cases  of  contract. 
Le  statut  personnel  iHexerce  pas  seulement  son  autorite  dans 
h  lieu  dii  domicile  de  la  personne,  qui  sa  dispensation  la  suit, 
et  Vaccompagne  en  quelque  lieu  qiielle  aille  contracter ;  et 
qvlelle  injlue  sur  tons  les  Mens  sous  quelques  coutumes,  quits 
soient  assis.^  Mr.  Henry,  in  his  judicial  capacity,  has 
given  the  doctrine  a  like  extent  in  the  English  colony 
of  Demarara ;  for  he  declares,  that  in  the  cases  of  pro- 
digals, minors,  idiots,  and  lunatics,  the  law  of  the  domi- 
cil accompanies  the  party  everywhere.^  Cochin  lays 
down  the  doctrine  with  great  boldness,  that  a  marriage 
contracted  in  a  foreign  country  by  French  subjects, 
although  contracted  in  the  form  prescribed  by  the  fo- 


1  D'Argentre,  de  Leg.  Briton,  art.  218,  gloss.  6,  n,  4,  p.  647  ;  ante, 
^  56  ;  1  Froland,  M6m.  des  Statuts.  112  ;  Liverm.  Dissert.  ^  21,  p.  34. 

2  1  Froland,  Mem.  des  Statuts.  156  to  160  ;  Id.  112;  ante,  §  51a.  See 
also  1  Hertii  Opera,  ^  4,  n.  8,  p.  123  ;  Id.  n.  5,  p.  122,  edit.  1737  ;  Id.  p. 
171,  172,  edit.  1715. 

3  Henry  on  Foreign  Law,  p.  38,  39;  Odwin  v.  Forbes,  Id.  p.  95,  96, 
97. 


CH.  IV.]  CAPACITY  OF  PERSONS.  125 

reign  law,  is  void,  if  it  violates  the  laws  of  France.^  The 
subjects  of  the  King  of  France  (says  he)  are  always  his 
subjects.  And  the  parties  contracting  at  a  place  in 
Brabant,  have  only  that  capacity  to  contract,  which  is 
given  by  the  laws  of  their  own  country.  It  is  a  per- 
sonal statute,  which  follows  them  everywhere.^ 

§  85.  Huberus  seems  in  some  places  to  affirm  a  doc- 
trine, in  some  respects  quite  as  extensive,  although  it  is 
liable  to  be  modified  in  some  measure  by  the  local  law  ; 
while  in  other  places  he  deems  it  too  broad  and  indis- 
criminate, and  introduces  several  exceptions.  Thus,  as 
we  have  seen,  he  lays  it  down  as  a  general  rule  ;  Qiial- 
itates  personales  ccrto  loco  alicid  jure  mpressas,  ubiqtie  cir- 
cumferri  et  personam  comitari,  cum  Jioc  effectu,  ut  itbivis  lo- 
corim  eo  jure,  quo  tales  persona  alibi  gaudeni  vel  suljecti 
sunt,  fruiintiir,  et  suhjiciantur?  So,  that,  according  to 
Huberus,  the  state  or  condition  of  the  party,  as  to  capa- 
city or  incapacity  in  the  place  of  his  original  domicil, 
accompanies  him  everywhere,  so,  far,  and  so  far  only, 
that  the  law  of  the  place,  where  he  happens  to  be,  at- 
taches to  him,  so  far  as  it  touches  rights  or  powers 
growing  out  of  such  capacity  or  incapacity.  A  minor, 
for  example,  in  his  own  country,  is  subject  in  every 
other  country  to  the  laws  of  minority  of  the  latter  coun- 
try. In  regard  to  the  contract  of  matrimony  he  holds, 
that  it  is  to  be  governed  by  the  law  of  the  place,  where 
the  marriage  is  celebrated,  with  the  exception,  however, 
of  cases  of  incest.  "If"  (says  he)  "the  marriage  is 
lawful  in  the  place,  where  it  is   contracted  and  cele- 


1  Cochin,  (Euvres,  Tom.   1,  Cause  ^  xii,  p.  153,  154,  4to,  edit.  ;  Id. 
Tom.  3,  Cause  xii.  p.  136,  8vo.  edit.  1821. 

2  Ibid. 

3  Huberus,  De  Conflictu  Legum,  Lib.  1  tit.  3,  ^  12,  13. 

11* 


126  CONFLICT    OF   LAWS.  [CH.  IV. 

brated,  it  will  be  beld  valid  and  have  eJDfect  everywhere, 
with  this  exception,  that  it  does  not  create  a  prejudice 
to  others.  To  which  it  may  be  added,  if  it  is  not  of  an 
evil  example  ;  as  if  it  should  be  a  case  of  incest,  within 
the  second  degree  according  to  the  law  of  nations."  >S'/ 
Ucitmn  est  eo  hco,  ubi  contradum  et  celebratiim  est,  iibiqiie 
validiim  erit,  affectumque  habelit  siib  eddem  exceptione,  ^re- 
judicii  edits  non  creandi.  Cid  licet  addere,  si  exemijli  nimis 
sit  abominandi,  id  si  incestum  Juris  gentium  in  secundo  gradu 
contingeret,  alicuU  esse  permissum ;  quod  vix  est,  id  iisu 
venire  possit}  Huberus  also  puts  another  exception, 
where  persons  belonging  to  one  country  go  into  another 
to  be  married,  merely  to  evade  the  law  of  their  own 
country,  in  which  case  he  holds  the  marriage  to  be  void, 
although  it  is  good  by  the  law  of  the  place,  where  it  is 
celebrated.^  Scepe  fit,  ut  adolescentes  std)  curatorihiis 
agentes,furtivos  mnores  miptiis  conglutinare  cupientes,  abeant 
in  Frisiani  Orientalem,  aliave  loca,  in  quibus  curatorum  con- 
sensus admatrimoniumnonreqidretur,juxta  leges  Romanos, 
qiice  apiid  nos  hac  parte  cessant.  Celebrant  ibi  matrimoni- 
um,  et  max  redeant  in  Patriam.  Ego  ita  existimo,  ham 
rem  manifesto  j)ertinere  ad  eversionem  juris  nostri ;  et  ideo 
mn  esse  Magistratus  lieic  obligatos,  ^jure  Gentium,  ejusmo- 
di  nuptias  agnoscere  et  ratas  habere.  MuUoque  magis  sta- 
iuendum  est,  cos  contra  Jus  Gentium  facere  videri,  qui  civi- 
bus  alieni  imp)eni  sua  facilitate,  jus  patriis  Legibus  contra- 
rium,  scientes,  volentes,  impertiurdur? 

§  86.  This  latter  doctrine  has,  upon  the  most  solemn 
consideration,  been  overturned  in  England,  as  we  shall 
hereafter  see  ;''  and  such  a  marriage  in  evasion  of  the 

1  Huberus,  Lib.  I,  tit.  3,  §  8 ;  post,  ^  122. 

2  Ibid. 

3  Ibid. ;  post,  ^  123. 

4  See  2  Kent.  Coram.  Lect.  26,  p,  91,  92,  3d  edit.  ;  post,  ^  123,  124. 


CH.  IV.]  CAPACITY  OF  PERSONS.  127 

domestic  laws  has  been  held  valid.  But  we  are  not, 
therefore,  to  conclude  that  every  marriage  by  and  be- 
tween British  subjects  in  foreign  countries  will  be  held 
valid,  because  it  is  celebrated  according  to  the  laws  of 
such  countries.  On  the  contrary,  where  the  laws  of 
England  create  a  personal  incapacity  to  contract  mar- 
riage, that  incapacity  has,  in  some  cases,  been  held  to 
have  a  universal  operation,  so  as  to  make  a  subsequent 
marriage  in  a  foreign  country  a  mere  nullity,  when  liti- 
gated in  a  British  court.^ 

§  87.  Indeed,  the  general  principle  adopted  in  Eng- 
land in  regard  to  cases  of  this  sort  appears  to  be,  that 
the  Lex  loci  contractus  shall  be  permitted  to  prevail,  un- 
less when  it  works  some  manifest  injustice,  or  is  co7itra 
bonos  mores,  or  is  repugnant  to  the  settled  principles 
and  policy  of  its  own  laws.  An  illustration  of  the  gene- 
ral principle,  and  of  the  exception,  may  be  found  in 
the  known  difference  between  the  Scottish  law  and  the 
English  law,  on  the  subject  of  the  legitimation  of  ante- 
nuptial offspring.  By  the  law  of  Scotland  illegitimate 
children  become  by  the  subsequent  marriage  of  the  pa- 
rents, legitimate,  and  may  inherit  as  heirs.  But  the 
law  of  England  is  otherwise ;  and  a  subsequent  mar- 
riage between  the  parents  will  not  take  away  the  cha- 
racter of  illegitimacy.  Upon  a  recent  occasion  the  ques- 
tion arose  in  an  English  court  (the  Court  of  King's 
Bench,)  whether  a  person,  born  in  Scotland  of  Scottish 
parents,  who  afterwards  intermarried  there,  and  thereby 


1  Conway  v.  Beasley,  3  Hagg.  Ecc.  R.  639,  647,  652  ;  Lolley's  Case, 
1  Russell  &  Ryan,  Cr.  Cas.  236.  It  will  probably  be  found  very  difficult 
to  maintain  the  doctrine  in  Lolley's  case,  and  in  subsequent  discussions  its 
authority  has  certainly  been  a  good  deal  shaken.  See  Warrender  v.  War- 
render,  9  Bligh,  R,  89  ;  and  post.  ^  117,  124,  221  to  231. 


128  CONFLICT    OF   LAWS.  [CH.  IV. 

became  legitimate  in  Scotland,  could  inherit  real  estate 
as  a  legitimate  heir  in  England.  It  was  held  by  the 
Court  that  he  could  not.^  On  that  occasion  it  was  ad- 
mitted by  the  Court,  that  a  foreign  marriage,  however 
solemnized,  if  good  by  the  foreign  local  law,  ought  to 
be  held  valid  everywhere  ;  but  that  it  did  not  follow 
from  this,  that  all  the  consequences  of  such  a  marriage 
by  such  foreign  local  law  were  to  be  adopted.  On  the 
other  hand,  that  it  was  sufficient,  that  all  such  conse- 
quences, as  follow  from  a  lawful  marriage  solemnized  in 
England,  were  admitted  to  govern  in  such  cases."  One 
of  the  learned  judges  on  that  occasion  said ;  "  The  very 
rule,  that  a  personal  status  accompanies  a  man  every- 
where, is  admitted  to  have  this  qualification,  that  it 
does  not  militate  against  the  law  of  the  country,  where 
the  consequences  of  that  status  are  sought  to  be  en- 
forced.^ 

§  87  a.  Yet  the  law  of  foreign  countries  as  to  legiti- 
macy is  so  far  respected  in  England,  that  a  person, 
illegitimate  by  the  law  of  his  domicil  of  birth,  will  be 
held  illegitimate  in  England.''     Thus,  it  has  been  decid- 


1  Doe  d.  Birthwhistle  v.  Vardell,  5  Barn.  &  Cress.  438  ;  S.  C. 
9  Bligh,  R.  32  to  88  ;  7  Clark  &  Finn.  895. 

2  Doe  d.  Birthwhistle  v.  Vardell,  5  Barn  &  Cress.  438  ;  S.  C.  9  Bligh, 
R.  32  to  88.  This  case  was  carried  to  the  House  of  Lords  by  a  Writ  of 
Error  ;  and  there  the  question  was  propounded  to  the  judges,  who  re- 
turned an  answer  affirming  the  decision  of  the  King's  Bench.  But  the 
question  has  since  been  reargued,  and  the  case  has  not  as  yet  been  finally 
decided  by  the  House  of  Lords.  [It  has  since  been  decided,  and  is  reported 
in  7  Clark  &  Finn.  895.]     See  post,  §  93. 

3  Per  Littledale,  J.,  5  Barn.  &  Cress.  455. 

4  See  Munro  v.  Saunders,  6  Bligh,  R.  468  ;  Shedden  v.  Patrick,  and 
The  Strathmore  Peerage,  cited  in  Barn.  &  Cress.  444  ;  in  3  Hagg.  Ecc. 
R.  652  ;  in  6  Bligh,  R.  474,  475,  487  ;  and  in  9  Bligh,  R.  51,  52,  75,  76, 
80,  and  reported  in  4  Wils.  «fc  Shaw,  R.  App.  89  to  95. 


CH.  IV.]  CAPACITY  OF  PERSONS.  129 

ed  by  the  House  of  Lords,  as  a  general  doctrine,  that 
the  courts  of  the  country  where  the  lands  lie,  in  a 
question  respecting  the  heirship  to  these  lands,  ought 
to  govern  themselves  as  to  the  question  of  legitimacy 
not  by  the  law  of  the  country,  where  the  lands  lie,  but 
by  that  of  the  country,  where  the  marriage  of  the  pa- 
rents was  contracted,  and  the  child  born ;  and  if  he  is 
not  the  legitimate  heir  by  that  foreign  law,  his  claim  to 
the  inheritance  ought  to  be  rejected.i  The  natural 
conclusion  from  this  doctrine  would  seem  to  be,  that,  if 
he  was  the  legitimate  heir  by  that  foreign  law,  his  claim 
to  the  inheritance  ought  to  be  firmly  established.  Yet 
this  conclusion  has  been  pointedly  repelled  by  the 
learned  judges  in  the  case  already  alluded  to,^  and 
which  we  shall  have  occasion  to  consider  more  fully 
hereafter.^ 

§  88.  Another  illustration,  touching  the  capacity  of 
persons  to  contract  marriage,  may  be  stated  from  Eng- 
lish jurisprudence.  By  the  law  of  England  marriage 
is  an  indissoluble  contract,  except  by  the  transcendent 
power  of  Parliament.  Hence  it  has  been  held,  that  a 
marriage  once  celebrated  between  British  subjects  in  an 
English  domicil,  cannot  be  dissolved  by  a  divorce  ob- 
tained under  the  laws  of  a  foreign  country,  to  which 
the  parties  may  temporarily  remove.^     Thus,  for  exam- 

1  See  Shedden  v.  Patrick,  and  the  case  of  The  Strathmore  Peerage,  as 
cited  in  9  Bligh,  R.  51,  52,  75,  76,  80,  81. 

2  Birthwhistle  v.  Vardell,  9  Bligh,  R.  52,  53.  — I  confess  myself  wholly 
unable  to  reconcile  these  latter  decisions  with  the  former.  The  attempt 
to  reconcile  them  seems  to  me  more  ingenious  than  satisfactory.  Lord 
Brougham's  comments  on  the  subject,  in  Birthwhistle  v.  Vardell,  9  Bligh, 
R.  75,  80,  81,  appear  to  me  exceedingly  forcible  and  difficult  to  be  an- 
swered.    Post,  ^  93. 

3  Post,  93,  94. 

4  Lolley's  Case,  1  Russ.  &  Ryan's  Cases,  236.  But  see  Warrender  v. 
Warrender,  9  Bligh,  R.  89  ;  post,  §  219  a. 


130  CONFLICT    OF   LAWS.  [CH.   IV. 

pie,  that  an  English  marriage  cannot  be  dissolved,  un- 
der such  circumstances,  by  a  Scotch  divorce,  regularly- 
obtained  according  to  the  law  of  Scotland,  by  persons 
going  thither  for  that  purpose,  who  have  their  domicil 
in  England.^  And  a  second  marriage  in  Scotland  after 
such  divorce  will  be  held  unlawful,  and  will  subject  the 
parties  to  the  charge  of  bigamy.^  This  doctrine,  how- 
ever, seems  open  to  much  controversy ;  and  can  scarcely 
now  be  held  firmly  established,  if  indeed  it  has  not 
been  overthrown  by  recent  adjudications.^  Perhaps  it 
yet  remains  an  undecided  question  in  the  English  law, 
(as  we  shall  hereafter  see,)  whether  a  lond  fide  change 
of  domicil,  and  a  divorce  subsequently  obtained,  would 
change  the  legal  predicament  of  the  parties  in  an  Eng- 
lish tribunal.''  But  it  has  been  directly  decided,  that 
the  mere  fact,  that  the  marriage  takes  place  in  England 
between  British  subjects,  will  not,  if  the  husband  at 
that  time  has  his  domicil  in  Scotland,  take  away  the 
right  of  the  courts  in  Scotland  to  entertain  jurisdiction 
to  decree  a  divorce  founded  on  such  domicil.^  But 
this  subject  will  presently  come  more  fully  under  con- 
sideration.^ 

§  89.  In  the  American  courts  the  doctrine,  as  to  ca- 
pacity or  incapacity  to  marry,  has  been  held  to  depend 
generally  on  the  law  of  the  place,  where  the  marriage 
is  celebrated,  and  not  on  that  of  the  place  of  domicil  of 
the  parties.     An  exception  would  doubtless  be  applied 


1  See  Rex  v.  Lolley,  1  Russ.  and  Ryan,  C.  236  ;  Tovey  v.  Lindsay,  1 
Dow,  R.  124  ;  Beazley  v.  Beazley,  3  Hagg.  Ecc.  R.  639.  See  also  Fer- 
gusson  on  Marr.  and  Div.  Appendix,  269  ;  Warrender  v.  Warrender,  9 
Bligh,  R.  89 ;  post,  ^  219  a. 

2  Ibid.     See  Warrender  v.  Warrender,  9  Bligh,  R.  89  ;  post,  §  219  a. 

3  Ibid.  4  Ibid.  5  Ibid. 
6  Post,  ch.  7,  from  ^  200  to  231. 


GH.  IV.]         CAPACITY  OF  PERSONS.  131 

to  cases  of  incest  and  polygamy.^  But,  in  aflQrmance 
of  the  general  principle,  it  has  been  held,  that  if  a  per- 
son, divorced  from  his  first  wife,  is  rendered  by  the  law 
of  the  place  of  the  divorce  incapable  of  contracting  a 
second  marriage,  still,  if  he  contracts  marriage  in  ano- 
ther state,  where  the  same  disability  does  not  exist, 
the  marriage  will  be  held  valid.^  And  a  marriage,  cele- 
brated in  a  foreign  state,  to  evade  the  law  of  the  place 
of  domicil,  is  on  the  same  account  held  valid.^  Mr. 
Chancellor  Kent  formerly  laid  down  the  doctrine  in  re- 
gard to  contracts  generally  in  terms,  which  might  admit 
of  a  different  interpretation.  He  said  ;  "  The  personal 
incompetency  of  individuals  to  contract,  as  in  the  case 
of  infancy,  and  the  general  capacity  of  parties  to  con- 
tract, depend,  as  a  general  rule,  upon  the  law  of  the 
domicil."  ^  But  he  was  then  to  be  understood  as  refer- 
ring to  the  law  of  the  domicil,  only  when  it  is  the  place, 
where  the  contract  is  made  ;  for  in  the  same  paragraph 
he  stated,  that  the  Lex  loci  contractus  governs  in  relation 
to  the  validity  of  contracts ;  and  he  applied  it  espe- 
cially to  nuptial  contracts.^ 


1  Post,  ^113,  114. 

2  2  Kent,  Comm.  91  to  93,  3d  edit.  ;  Id.  458,  459  ;  Putnam  v.  Putnam, 
8  Pick.  433  ;  West  Cambridge  v.  Lexington,  1  Pick.  R.  504  ;  De  Couche 
V.  Savatier,  3  Johns.  Ch.  R.  190  ;  Conway  v.  Beazley,  3  Hagg.  639  ; 
Dickson  v.  Dickson,  1  Yerger,  10  ;  post,  §  123. 

3  Ibid. 

4  2  Kent,  Comm.  Lect.  39,  p.  458,  2d  edition  ;  post,  §  123. 

5  2  Kent,  Comm.  Lect.  39,  p.  458,  2d  edition,  and  De  Couche  v.  Sava- 
tier, 3  Johns.  Ch.  R.  190.  — The  English  authorities,  cited  by  Mr.  Chan- 
cellor Kent,  justify  this  conclusion.  One  is,  Male  v.  Roberts,  in  3  Esp. 
R.  163,  which  was  a  case  of  a  contract  by  a  minor  in  Scotland,  during  his 
temporary  residence  there,  and  it  was  held  to  be  governed  by  the  law  of 
Scotland.  Another  is,  Ex  parte  Otto  Lewis,  1  Ves.  R.  298,  where  a 
lunatic  heir  of  a  mortgagee,  who  had  been  declared  a  non  compos  in  Ham- 


132  CONFLICT    OF   LAWS.  [CH.  IV. 

§  90.  The  difficulty  of  applying  any  other  rule,  as  to 
the  capacity  and  incapacity  of  the  person,  in  respect  to 
the  class  of  nuptial  contracts,  will  become  still  more 
clear  by  attending  to  the  great  extent  of  the  parental 
power,  recognized  by  the  continental  nations  of  Europe, 
and  derived  by  them  from  the  civil  law.  Parental 
restraints  upon  the  marriage  of  minors  exist  to  a  very 
great  extent  in  Germany,  Holland,  France,  and  other 
civil  law  countries ;  to  so  great  an  extent,  indeed,  that 
the  marriage  of  minors,  without  the  consent  of  their 
parents,  or  at  least  of  their  father,  is  absolutely  void ; 
and  the  disability  of  minority  is  in  these  countries  car- 
ried to  a  much  greater  age  than  it  is  by  ■  the  common 
law.'  In  some  of  these  countries  majority  is  not  at- 
tained until  thirty  j  and  until  a  very  recent  period, 
even  in  France,  the  age  of  a  majority  of  males  was 
fixed  at  twenty-five  and  of  females  at  twenty-one.     It 


burg,  and  no  commission  of  lunacy  had  been  taken  out  in  England,  was 
ordered  to  convey  the  estate  in  payment  of  the  mortgage  in  Hamburg, 
under  Statute  4  Geo.  ch.  10.  Here,  Lord  Hardwicke  manifestly  acted 
upon  the  ground,  that  the  mortgage-money  was  personal  property,  and, 
the  lunatic  being  domiciled  in  Hamburg,  the  court  would  take  notice  of  his 
disability  to  convey  there,  by  the  law  of  that  place.  The  remaining  au- 
thority is  Pardessus.  His  doctrine  is  certainly  more  broad.  But  it  could 
not  have  been  intended  by  Mr.  Chancellor  Kent  to  overrule  the  English 
doctrine,  and  his  own  prior  statement,  upon  the  authority  of  a  foreign  ju- 
rist. The  ambiguity  is  corrected  in  the  third  edition  ;  and  the  words  "  the 
law  of  the  place  of  contract"  are  substituted  for  the  words  "the  law  of 
the  domicil."  2  Kent,  Comment.  Lect.  39,  p.  458,  3d  edition.  Pardes- 
sus is  an  authority  in  favor  of  the  limited  doctrine,  that  a  person  incapaci- 
tated by  the  law  of  his  domicil  cannot  contract  with  validity  there  ;  but  he 
carries  his  doctrine  much  farther.  The  cases  of  Saul  v.  His  Creditors 
17  Martin,  R.  596,  598,  and  Baldwin  u.  Gray,  16  Martin,  R.  192,  193, 
already  cited,  establish  a  like  limited  doctrine,  and  decide,  that  a  contract 
by  a  minor  is  to  be  governed  by  the  Lex  loci  contractus  ;  ante,  §  75. 

1  2  Kent,  Comm.  Lect.  26,  p.  86,  3d  edition  ;  I  Black.  Coram.  437  ; 
Ruding  V.  Smith,  2  Hagg.  Consist.  R.  372,  389  ;  Id.  395.  1  Brown,  Civ. 
and  Adm.  Law,  59. 


CPI.  IV.]  CAPACITY    OF   PERSONS.  133 

is  now  fixed  at  twenty-one  in  all  other  cases,  except 
for  the  purpose  of  contracting  marriage ;  and  a  mar- 
riage cannot  even  now  be  contracted  in  France  by  a 
man  until  twenty-five  years  of  age,  and  by  a  woman 
until  twenty-one,  without  the  consent  of  their  parents, 
or  at  least  of  their  fathers,  if  the  parents  differ  in 
opinion/  Yet  France  has  ventured  upon  the  bold  doc- 
trine that  the  marriages  of  Frenchmen  in  foreign 
countries  shall  not  be  deemed  valid,  if  the  parties  are 
not  by  its  own  law  competent  to  contract  by  reason  of 
their  being  under  the  parental  power.^  There  can  be 
little  doubt,  that  foreign  countries,  where  such  mar- 
riages are  celebrated,  will  follow  their  own  law,  and 
disregard  that  of  France.^ 

§  91.  If  we  pass  from  cases  of  minority  to  other  disabi- 
lities, enforced  by  the  law  of  the  native  domicil,  or  that  of 
an  after  acquired  domicil,  there  will  be  still  more  reason 
to  doubt,  whether  any  rule  of  such  law,  respecting  per- 
sonal capacity  and  incapacity,  ought  to  be  declared  to  be 
of  universal  obligation  and  efficacy.  Let  us  take  the 
case  of  a  person  declared  infamous  by  the  law  of 
the  place  of  his  domicil.  It  is  said  that  under  such 
circumstances  he  ought  to  be  deemed  everywhere  in- 
famous. Hinc  (says  Hertius)  in  uno  loco  infamis,  iibique 
infamis  habetiir.  Surely,  it  will  not  be  contended,  that, 
if  a  Protestant  should  be  declared  a  heretic  in  a  Catholic 
country,  and  there  rendered  infamous,  and  inhabilitated 
thereby,  he  is  to  be  deemed  under  the  like  infamy  and 
disability  in  all  Protestant   countries.     That  surely 


1  Code  Civil  of  France,  art.  148,  488. 

2  2  Kent,  Comna.  Lect.  26,  p.  93,  note,  3d  edit. ;  Code  Civil  of  France, 
art.  170 ;  Id.  art.  148  ;  1  Toullier,  Droit  Civil,  art.  576,  577. 

3  See  post,  §  123,  124. 
CONFI..  12 


134  CONFLICT    OF   LAWS.  .  [CH.  IV. 

would  be  pressing  the  doctrine  to  a  wanton  extra- 
vagance.^ Yet  certainly  many  foreign  jurists  do  press 
it  to  that  extent.^ 

§  92.  In  like  manner,  let  us  consider  the  civil  disa- 
bilities imposed  by  the  English  laws,  in  cases  of  out- 
lawry, excommunication,  civil  death,  and  popish  recu- 
sancy.^ It  would  be  difficult  to  maintain,  that  these 
accompanied  the  person  to  America,  where  no  like 
disabilities  exist,  and  where  they  are  foreign  to  the 
whole  genius  of  our  institutions.  Yet  many  foreign 
jurists  strenuously  maintain  the  doctrine.'*  We  have 
no  positive  laws  declaring  that  such  foreign  disabilities 
shall  not  be  recognized.  But  an  American  court  would 
deem  them  purely  local,  and  incapable  of  being  enforced 
here.  Even  the  conviction  of  a  crime  in  a  foreign 
country,  which  makes  the  party  infamous  there,  and 
incapable  of  being  a  witness  in  their  courts,  has  been 
held  not  to  produce  a  like  effect  here.^  The  capacity 
or  incapacity  of  any  persons,  to  do  acts  in  their  own 
country,  would  undoubtedly  under  such  circumstances 
be  judged  by  their  own  laws ;  but  not  their  capacity  or 
incapacity  to  do  the  like  acts  in  any  foreign  territory, 
where  different  laws  prevail. 

§  93.  Foreign  jurists,  also,  generally,  although  not 
universally,  maintain,  that  the  question  of  legitimacy  or 
illegitimacy  is  to  be  decided  exclusively  by  the  law  of 

1  See  1  Hertii  Opera,  §  4,  n.  8,  p.  124,  edit.  1737;  Id.  178,  edit.  1716; 
Liverm.  Diss.  p.  30,  31. 

2  See  Henry  on  Foreign  Law,  p,  30  ;  I  Boullenois,  Observ.  4,  p.  52  to 
67  ;  1  Voet,  ad  Pand.  Lib.  1,  tit.  4,  n.  7,  p.  40. 

3  See  3  Black.  Coram.  101,  102,  283  ;  1  Black.  Coram.  132 ;  4  Black. 
Coram.  54,  319,  320. 

■»  1  Boullenois,  Observ.  p.  59  to  p.  67  ;  2  Boullenois,  p.  9,  10,  19.   But 
see  contra,  J.  Voet,  De  Statut.  ^  4,  ch.  3,  n.  17,  18,  p.  130,  edit.  1737. 
5  Commonwealth  v.  Green,  17  Mass.  R.  515,  540,  541. 


CH.  IV.]  CAPACITY   OF  PERSONS.  135 

the  domicil  of  origin.  They  assert  the  general  maxim 
to  be  of  universal  obligation,  Pater  est,  qiiem  justce  nup- 
ticc  demonstrant,  applying  it  in  its  broadest  sense.^ 
They  therefore  hold,  that  if  by  the  law  of  a  country 
(as,  for  example,  of  Scotland,)  a  man,  born  a  bastard, 
becomes  legitimate  by  a  subsequent  marriage  of  his 
parents  there,  he  ought  to  be  deemed  legitimate  every- 
where. And  so,  on  the  contrary,  if  a  man  would,  by 
the  law  of  the  country  of  his  birth,  be  deemed  illegiti- 
mate (as,  for  example,  in  England,)  he  ought  to  be 
deemed  illegitimate  everywhere,  even  in  another  coun- 
try, where  he  would  by  its  law  otherwise  be  deemed 
legitimate.^ 

§  93  a.  It  has  been  above  stated,  that  foreign  jurists 
generally,  although  not  universally,  hold  this  opinion  ; 
for  there  is  some  diversity  of  opinion  among  them,  if 
not  as  to  the  application  of  the  rule  ex  dlrecto  to  the 
persons,  at  least  as  to  its  application  to  property  situate 
in  a  foreign  country.  Considering,  therefore,  the  im- 
portance of  the  subject,  and  that  it  has  already  under- 
gone a  most  elaborate  discussion  in  England,  in  the 
case  already  adverted  to,  and  which  we  shall  have 
occasion  to  consider  more  fully  hereafter,^  it  is  desira- 


1  Post,  ^  93  a  to  §  93  m. 

2  1  BouU.  Obs.  4,  p.  62  to  64.  But  see  Voet,  de  Statut.  §  4,  ch.  3,  n. 
15,  p.  138,  edit.  1712  ;  1  Hertii  Opera,  ^  4,  n.  14,  15,  p.  129,  edit.  1737. 
—  Legitimation  by  a  subsequent  marriage  is  admitted  with  different  modi- 
fications by  the  law  of  Scotland,  France,  Spain,  Portugal,  Germany,  and 
most  of  the  continental  nations  of  Europe.  The  rule  was  imported  into 
their  jurisprudence  from  the  Roman  Law.  1  Burge,  Comment.  P.  l,ch.  3, 
^  2,  p.  92,  93  ;  Cod.  Lib.  5,  tit.  27, 1.  5  ;  Novell.  78,  ch.  4  ;  Id.  89,  ch.  8. 
In  some  of  the  American  States  the  same  rule  prevails.  1  Burge,  Com- 
ment, on  Col.  and  For.  Law,  ch.  3,  ^  3,  p.  101 ;   Griffith's  Law  Register. 

3  Birthwhistle  v.  Vardell,  5  Barn.  &  Cresw.  438  ;  S.  C.  9  Bligh,  R. 
82  ;  ante,  ^  81  ;  7  Clark  &  Finn.  895. 


136  CONFLICT    OF   LAWS.  [CH.    IV. 

ble,  that  doctrines  maintained  by  foreign  jurists,  as  well 
as  the  reasoning  of  the  English  courts  on  the  subject, 
should  be  here  brought  under  review. 

§  93  h.  It  seems  then  generally  admitted  by  foreign 
jurists,  that,  as  the  validity  of  the  marriage  must  de- 
pend upon  the  law  of  the  country  where  it  is  cele- 
brated, the  status^  or  state,  or  condition,  of  their  offspring, 
as  to  legitimacy  or  illegitimacy,  ought  to  depend  upon 
the  same  law.  So  that,  if  by  the  law  of  the  place  of 
the  marriage,  (at  all  events,  if  the  parents  were  then 
domiciled  there,)  the  offspring,  although  born  before 
the  marriage,  would  be  legitimated,  they  ought  to  be 
deemed  legitimate  in  every  other  country,  for  all  pur- 
poses whatsoever,  including  heirship  of  immovable  pro- 
perty.-^ 

§  93  c.  This  is  certainly  the  doctrine  maintained  by 
many,  perhaps  by  a  large  majority  of  foreign  jurists.^ 
Vinnius  says  ;  Item,  jus  ijersonce  hie  esse,  quod  statwn  el 
eonditionem  personcs  seqidtiir.  Nam  status  ijjse  est  personce 
conditio,  aid  qualitas,  qua  efficit,  ut  hoe  vel  illo  jure  utatur, 
ut  esse  liherwn,  esse  servum,  esse  ingemium,  esse  lihertinum, 
esse  alieni,  esse  sui  juris?  Huberus  also  extends  the  rule 
not  only  to  the  marriage  itself,  but  also  to  all  rights  and 
effects  flowing  therefrom.  Porro,  non  tantum  ipsi  con- 
tractus ipsceque  nuptice,  certis  locis  ritd  cekbratcB,  ubique 
pro  jusiis  et  validis  hdbentur,  sed  etiam  jure  et  effecta  con- 
tractuum  et  nuptiaru7n,  in  iis  locis  recepta,  ubique  vim  suam 
obtinebunt^     Stockmannus  says  ;  Statuta,  in  personas  di- 


1  See  1  Burge,  Coram,  on  Col.  and  For.  Law,  P.  1,  ch.  3,  p.  101  to  p. 
106. 

2  See  1  Burge,  Comment  on  Col.  and  For.  Law,  P.  1,  ch.  3,  ^  3,  p.  101 
to  p.  106. 

3  Vinnius,  ad  Inst.  Lib.  1,  tit.  3,  Introd. 

^  Huberus,  De  Conn.  Leg.  Lib.  1,  tit.  3,  ^  9. 


CH.  IV.]  CAPACITY   OP  PERSONS.  137 

recia,  quce,  certam  us  qiialitatem  affigunt,  transeimt  qiiidem 
cum  per^onis  extra  territorkmi  statuentim,  tit  personoi  iili- 
qiie  sit  imiformis,  ejusque  iiniis  status} 

§  93  d.  Bouliier  adopts  the  doctrine  in  its  fullest  ex- 
tent, and  applies  it  to  the  very  case  of  legitimacy.  He 
says,  that  the  state  of  the  child,  whether  legitimate  or 
illegitimate,  must  be  decided  by  the  law  of  the  domicil 
of  his  parents  ;  and  that  this  is  an  inviolable  rule  upon 
every  question  of  his  state  or  condition.  And,  hence, 
he  holds,  that  if  he  is  at  his  birth  illegitimate,  and  he  is 
legitimated  by  a  subsequent  marriage  in  the  same  coun- 
try between  his  parents,  he  is  in  all  respects  to  be 
treated  as  legitimate  everywhere.^  Hertius  holds  a 
similar  opinion.^  Froland  is  of  the  same  opinion.^ 
Boullenois  is  very  full  on  the  same  point.  He  holds 
that  the  general  rule  is.  Pater  est,  quern  jiistm  niqjtcE  dc- 
monstrant  ;  and  that  if  a  person  is  legitimate  or  illegi- 
timate, by  the  law  of  the  place  of  the  marriage,  he  is  to 
be  held  of  the  same  state  and  condition,  wherever  he 
may  go,  and  whatever  change  of  domicil  may  take 
place.^  Hence  he  declares,  that  if  by  the  law  of  a 
country  a  man  born  a  bastard  is  legitimated  by  the  sub- 
sequent marriage  of  his  parents,  or  e  contra,  if  by  the 


1  Stockman.  Decis.  125,  ^  6,  p.  262  ;  also  cited  1  Boullenois,  Obser.  6, 
p.  131  ;  Livermore,  Dissert.  ^  50,  p.  52.  — John  Voet,  in  the  most  ex- 
plicit terms,  admits,  that  this  rule  is  held  to  apply  to  questions  of  legiti- 
macy by  many  jurists,  and  especially  by  D'Argentr6,  by  Grotius,  by 
Christinaeus,  and  by  Rodenburg.  J.  Voet,  Comm.  ad  Pand.  Lib.  1,  tit.  4, 
n.  7,  p.  40. 

2  Bouhier,  Cout.  de  Bourg.  ch.  24,  ^  122,  123,  p.  481. 

3  Hertii,  de  Collis,  Leg.  Tom.  1,  \  4,  n.  15,  p.  184,  edit.  1716  ;  Id. 
p.  129,  edit.  1737. 

■*  1  Froland,  Mem.  ch.  5,  §  4,  p.  89  ;  Id.  ch.  7,  §"2,  p.  156,  edit.  1716; 
ante,  §  51  a. 
5  1  Boullenois,  Observ.  4,  p.  62,  63  ;  post,  ^  93  i. 
12* 


138  CONFLICT    OF   LAWS.  [CH.  IV. 

law  of  the  country  such  subsequent  marriage  does  not 
legitimate  him,  he  is  in  every  other  country  affected  by 
his  original  state  or  condition ;  that  is  to  say,  if  legiti- 
mated by  the  subsequent  marriage,  he  is  legitimate 
everywhere  ;  if  not  so  legitimated,  he  is  held  illegiti- 
mate everywhere.^  Even  Burgundus,  and  Stockman- 
nus,  and  Christinseus,  whose  systems  are  founded  upon 
a  different  theory,  viz.,  that  personal  statutes  have  no 
extra-territorial  effect,  admit  that  so  far  as  the  person  is 
concerned,  though  not  as  to  immovable  property,  (as  we 
shall  presently  see,^)  the  original  state  or  condition 
ought  to  govern  everywhere.^  The  opinion  of  Paul 
Voet  and  John  Yoet  on  the  same  subject  is  far  more 
limited  and  qualified,  and  will  come  under  our  review 
hereafter.^ 

§  93  ^.  The  same  general  doctrine  is  avowedly  adopt- 
ed by  the  Courts  of  England.  Lord  Stowell  on  one 
occasion  in  effect  maintained,  that  by  the  law  of  Eng- 
land the  status  or  condition  of  a  claimant  must  be  tried 
by  reference  to  the  law  of  the  country,  where  that  status 
originated.^  The  same  doctrine  was  adopted  by  the 
judges  of  England,  in  giving  their  opinion  to  the  House 
of  Lords.  They  admitted,  in  the  most  solemn  form, 
that  the  legitimacy  or  illegitimacy  of  a  person  must  be 
decided  by  the  law  of  the  place  where  the  marriage 
was  celebrated ;  and  that  if  by  the  law  of  that  place 


1  Ibid.  2  Post,  ^  93  k. 

3  Ante,  §  52  ;  Burgundus,  Tract.  1,  ^  3,  p.  15  ;  Christinaeus,  Tom.  2, 
Decis.  3,  §  3,  p.  4  ;  Id.  Decis.  56,  ^  12,  p.  55  ;  Stockmann.  Decis.  125, 
^  6,  9,  p.  262,  263  ;  1  Boullenois,  Observ.  4,  p.  130,  131. 

4  Post,  §  93  1. 

5  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.  R.  54,  59  ;  S.  C.  9  Bligh, 
R.  45,  46. 


CH.  IV.]  CAPACITY   OF  PERSONS.  139 

(for  example  Scotland)  a  son,  born  before  the  marriage 
of  his  parents,  would  by  a  subsequent  marriage  between 
them,  be  legitimated,  that  status  of  legitimacy  must  be 
deemed  ecjually  true  and  valid  everywhere  else,  where 
the  question  might  arise.^ 

§  93/.  Still,  however,  although  the  general  doctrine 
is  thus  extensively  admitted,  there  is  some  diversity  of 
opinion,  as  to  the  true  nature  and  extent  of  its  appli- 
cation in  regard  to  different  kinds  of  property,  and 
also  in  regard  to  the  circumstances  of  particular  cases." 
Thus,  for  example,  although  its  positive  application  in 
regard  to  movable  property  is  generally  admitted ;  yet, 
in  regard  to  immovable  property  in  a  foreign  country 
there  has  been  some  contrariety  of  judgment.  The  cir- 
cumstances, also,  under  which  the  question  of  legiti- 
macy or  illegitimacy  may  arise,  may  be  very  various,  and 
admit  of  important  distinctions  in  the  application  of  the 
general  doctrine.  The  birth  may  be  in  one  country, 
the  marriage  be  in  another,  and  the  domicil  of  the  pa- 
rents be  in  a  third.^ 

§  93  y.  Several  cases  may  easily  be  put  to  illustrate 
this  suggestion.  The  question  of  legitimacy  or  illegiti- 
macy may  arise  among  others  in  the  following  cases. 
(1.)  Where  a  child  is  born  before  marriage  in  the  domi- 
cil of  his  parents,  who  afterwards  intermarry  there,  and 
by  the  law  of  that  domicil  the  child  is  thereby  legiti- 
mated.    (2.)  Where  a  child  is  born  before  marriage  in 


1  Birthwhistle  v.  Vardill,  9  Bligh,  R.  45,  46,  48  ;  Id.  71  ;  post,  (J  93  n, 
§93o. 

2  See  1  Burge,  Comment,  on  Col.  and  For.  Law,  P.    1,   ch.    3,  §   3, 
p.  105,  106,  109,  110. 

3  See  Lord  Brougham's  Remarks  in  Birthwhistle  v.  Vardill,  9  Bligh, 
R.  78. 


140  CONFLICT    OF   LAWS.  [CH.  IV. 

the  domicil  of  his  parents,  and  by  the  law  thereof,  a 
subsequent  marriage  would  legitimate  the  child,  and 
the  parents  are  afterwards  married  in  another  country, 
by  whose  law  no  such  legitimation  would  follow.  (3.) 
Where  a  child  is  born  before  marriage  in  the  domicil  of 
his  parents,  by  whose  law  no  legitimation  would  follow 
on  their  subsequent  marriage,  and  they  remove  to  a  new 
domicil,  where  the  law  would,  upon  such  marriage,  le- 
gitimate the  child,  and  they  are  there  married.  (4.) 
Where  the  child  is  born  before  marriage  in  the  domicil 
of  his  parents,  by  whose  law  no  legitimation  would  fol- 
low from  a  subsequent  marriage,  and  they  are  there 
married,,  and  subsequently  remove  to  a  new  domicil,  by 
the  law  whereof  such  subsequent  marriage  would  legi- 
timate the  child.  It  is  plain  that  these  several  cases 
may  admit  of,  if  they  do  not  absolutely  require,  the 
application  of  different  principles  to  resolve  them  ;  and 
different  questions  may  be  put  in  respect  to  them. 
Ought  the  law  of  the  place  of  birth,  or  that  of  the  place 
of  the  marriage,  or  that  of  the  actual  domicil  of  the 
parents,  or  that  of  the  actual  domicil  of  the  child,  to 
govern  ?  ^ 

§  93  li.  The  most  simple  case,  and  that  which  has 
most  frequently  arisen  for  discussion,  is  the  first  stated ; 
where  the  birth,  domicil,   and  marriage  of  the  parties 


1  A  case  still  more  complicated  is  said  to  be  now  pending  before  the 
House  of  Lords,  on  an  appeal  from  Scotland.  In  effect  it  is  this.  A.,  a 
Scotchman,  domiciled  in  Scotland,  had  an  illicit  connection  with  B.,  an 
English  woman,  domiciled  in  England,  by  whom  he  had  a  son  born  in 
England.  The  parents  afterwards  intermarried  ia  England,  the  father 
retaining  his  Scotch  domicil.  They  then  returned  to  Scotland  ;  and  the 
question  before  the  Court  was,  whether,  under  these  circumstances,  the 
son  was  legitimated  by  the  subsequent  marriage.  The  Court  of  Sessions 
of  Scotland  held,  that  he  was.     From  this  decision  appeal  is  taken. 


CH.  IV.]  CAPACITY  OF  PERSONS.  141 

took  place  in  a  country,  by  the  laws  whereof  a  subse- 
quent marriage  would  legitimate  the  child.  Suppose, 
then,  the  question  to  arise,  whether  in  such  a  case  the 
child,  so  legitimated  by  such  marriage,  could  inherit 
lands  in  another  country,  by  the  laws  whereof  no  such 
legitimation  would  follow  upon  such  marriage.  Or,  in 
other  words,  let  us  put  the  very  case,  as  it  actually  oc- 
curred in  the  courts  of  England,  in  the  case  above 
alluded  to,^  the  case  of  an  illegitimate  son  born  in  Scot- 
land, whose  parents  afterwards  intermarried  there,  and 
dying,  held  lands  in  England ;  would  such  son  be  en- 
titled to  inherit  the  land,  as  lawful  heir,  under  the  law 
of  England  ?  We  have  already  seen,  how  this  ques- 
tion has  been  decided  by  the  English  courts ;  ^  but,  as 
the  question  is  still  supposed  to  be  unsettled  there,  and 
is  also  of  very  general  applicatiDn  and  importance,  it 
may  be  well  to  give  it  a  fuller  consideration. 

93  i.  It  is  plain,  from  what  has  been  already  stated, 
and  indeed  is  directly  established  by  their  positive  de- 
clarations, that  those  of  the  foreign  jurists  already 
mentioned,  who  affirm  the  general  doctrine  of  the  uni- 
versality of  the  rule,  that  capacity  and  incapacity  de- 
pend upon  the  law  of  the  domicil  of  birth,  and  that  it 
equally  applies  to  movable  property  and  immovable  pro- 
perty, situate  in  foreign  countries,  would  hold  the  same 
rule  applicable  to  the  question  of  legitimacy  and  illegiti- 
macy, in  regard  to  the  inheritance  of  real  property  in  all 
foreign  countries.  This  is  certainly  maintained  by  Vinni- 
us,Huberus,Wesel,Froland,Ilodenburg,Bouhier,Boulle- 
nois,  Pothier,  and  Merlin,^  and  probably  by  Baldus  and 

1  Birthvvhistle  v.  Vardill,  5  Barn.  &  Aid.  438  ;  S.  C.  9  Bligh,  R.  51, 
52  ;  ante,  ^  93  a,  §  93  e  ;  post,  93  n. 

2  Ante,  ^  87. 

3  Ante,  ^  51  a,  52,  53,  54,  93,  93  d. 


142  CONFLICT   OP  LAWS.  [CH.  IV. 

Grotius.^  Hertius  puts  the  converse  case ;  An  Jilius, 
quern  pater  ante  legitimimi  conmibimn  in  Anglid  geniierat, 
succedere  possit  ]jatri  hide  naturali  in  bonis  ex  Anglid  sitis  ? 
And  he  holds,  that  he  could  not ;  because  the  son,  be- 
ing illegitimate  in  England,  would  be  held  illegitimate 
everywhere.^  And  this  naturally  flows  from  one  of 
his  rules  ;  Quando  lex  in  personam  dirigitur,  respiciendum 
est  ad  leges  illins  civitatis,  qiKZ  personam  liabet  siibjeetam? 
Bouhier  states  this  as  the  universal  rule  (as  we  have 
seen ;  ^)  but  he  admits,  that  if  the  law  of  a  particular 
nation  should  allow  the  inheritance  only  to  a  child  born 
in  lawful  matrimony,  (only  in  loyal  marriage,)  then  as 
to  land  there  situate,  it  ought  to  prevail,  upon  the  ground 
that  the  law,  in  such  a  case,  designated  the  condition 
of  heirship.  And  this  seems  to  have  been  also  Dumou- 
lin's  opinion.^  Boulleilois  (as  we  have  seen  ^)  holds  the 
doctrine  without  any  qualification  whatever.  He  presses 
the  doctrine  further,  and  insists,  that  if  a  child  is 
born  before  marriage  in  England,  and  his  parents  are 
afterwards  naturalized  in  France,  and  subsequently  in- 
termarry there,  the  child  becomes  legitimate  to  all  in- 
tents and  purposes.''  He  adds,  that  if  a  child  is  so  born 
illegitimately  in  England,  and  his  parents  marry  there, 
and  then  die,  and  he  then   takes   up   his   domicil  in 


1  J.  Voet,  ad  Pand.  Lib.  1,  tit.  4,  n.  7,  p.  40  ;  Liverm.  Dissert.  §  56, 
p.  57,  ^  109  to  114,  p.  84  to  p.  87. 

2  1  Hertii,  Opera.  Do  Collis.  Leg.  ^  4,  n.  15,  p.    183,  edit.   1716  ;  Id. 
p.  129,  edit.  1737. 

3  Id.  ^  4,  n.  8,  p.  175  ;  Id.  p.  123,  edit.  1837. 

4  Ante,  ^  93  d. 

5  Bouhier,  Cout.  de  Bourg.  ch.  24,  ^  124,  p.  481. 

6  Ante,  ^  93  d  ;  1  Boullenois,  Observ.  4,  p.  62,  63  ;  Id.  Obs.  6,  p.  129, 
130,  134  to  137. 

1  1  Boullenois,  Observ.  4,  p.  62,  63.     Ante,  ^  93  d. 


CH.  IV.]         CAPACITY  OF  PERSONS.  143 

France,  and  is  naturalized  there,  he  will  be  entitled  to 
succeed  to  their  property  in  France,  to  the  exclusion  of 
collaterals.^ 

§  93  1:.  Burgundus,  Christinoeus,  and  Stockmanuus 
may  be  thought  to  hold  the  contrary  doctrine,  upon  the 
general  foundation  of  their  system,  that  personal  laws 
have  no  operation  as  to  immovable  property  situate 
elsewhere.^  But  I  am  not  aware,  that  they  have  ever 
directly  discussed  this  question.  And  it  may  be,  that 
while  they  hold  that  immovable  property  must,  as  to 
heirship,  be  decided  by  the  Lex  loci  status,  they  may 
deem  the  capacity  of  legitimacy,  as  to  that  heirship,  as 
conclusively  established  by  the  law  of  the  birth  and 
domicil  of  the  party.  The  one  doctrine  is  certainly  not 
necessarily  inconsistent  with  the  other.^ 

§  93  ^.  Paul  Voet  and  John  Voet,  are,  as  far  as  my  re- 
searches have  gone,  the  only  jurists,  who  contend,  that 
the  law  of  legitimacy  of  the  domicil  of  the  party, 
although  a  personal  statute,  is  exclusively,  like  all  other 
personal  statutes,  confined  to  the  territory,  and  has  no 
operation  directly  or  indirectly  beyond  it.  Veriiis  est 
(says  John  Voet)  jyersonalla,  non  magis  qiiam  realm,  ter- 
ritoniim  statiientis  posse  excedere,  sive  directo,  she  per  con- 
sequentiam  ;  and  he  goes  on  (as  we  have  seen'*)  to  deny, 
that  a  bastard,  who  is  legitimated  by  the  law  of  his  do- 


1  1  BouUenois,  Obs.  4,  p.  63. 

2  See  Burgundus,  Tract.  1,  n.  8,  10,  25,  26  ;  Christineeus,  Vol.  2,  Lib. 
1,  Decis.  56  ;  Stockmann.  Decis.  125,  n.  10;  Livermore,  Dissert,  t^*  47, 
p.  50  ;  Id.  ^  106,  p.  81 ;  ante,  ^  93  d. 

3  John  Voet  seems  to  have  understood,  that  those  jurists,  who  hold, 
that  legitimacy  by  the  law  of  domicil  extended  the  same  capacity  every- 
where, gave  the  effect  to  it  here  supposed.  J.  Voet,  ad  Pand.  Lib.  1,  tit. 
4,  n.  7,  p.  40. 

4  Ante,  §  54  a  ;  Liverm.  Dissert.  ^  51,  52,  p.  54. 


144  CONFLICT    OF   LAWS.  [CH.  IV. 

micil,  can  inherit  by  succession  property  situate  in 
another  country,  where  no  such  legitimation  would  take 
place.  Paul  Yoet  holds  the  same  opinion.  Quid  aiitem 
statiiendum  erit  de  legUimato  in  irno  territorio  ;  censelitiir,  ne, 
ratione  lononim  alihijacenUiim,  iibi  legitimatus,  mn  erat  sta- 
tiitiim  vires  siios  excerere  ;  vel,  an  ilia  qualitas  sen  Jialilitas, 
ewn  iibique  locorum  comitahitur,  quoad  efectimi  conseqiien- 
dce  dignitatis,  vel  siiccedendi  al)  intestato  ?  Respondeo,  etsi 
per  legitimationem  JiaUUtetur  persona,  ut  velint  D.  D.,  quali- 
totem  earn  comitari  ubique  locorum,  etiam  ex  comitate  id  ser- 
vari  possit ;  qida  tamen  p)otissimiim  ilia  legitimatio  fit  ad  ef- 
fectiim  vel  honoris  vel  hereditatis  conseqiiendce  ;  in  qiiam  ni- 
Jiil  juris  hahet  is,  qida  hi  siio  territorio  legitimavit ;  existima- 
rem  ilium  legitimationem  ad  lionores  subeundos  et  hereditatem' 
extra  territorium  capiendam  non  sufficere> 

§  93  m.  The  weight  of  foreign  authority  would,  there- 
fore, on  the  whole,  seem  decidedly  to  preponderate  in 
favor  of  the  rule,  that  an  illegitimate  person,  who  by 
the  subsequent  marriage  of  his  parents  becomes  legiti- 
mated, as  heir  by  the  law  of  his  domicil,  ought  to  be 
deemed  such  as  to  the  inheritance  of  land  in  all  other 
countries,  at  least,  where  it  is  not  expressly  prohibited 
by  the  terms  of  the  local  law,  that  such  a  person,  born 
before  marriage,  should  inherit.^  Indeed,  the  opinion 
of  the  Voets  is  perhaps  less  fairly  maintainable,  because 
it  proceeds  upon  the  ground,  tliat  the  status  or  condition 
of  the  person  by  the  law  of  his  domicil  has  no  operation 
beyond  the  territory,  either  directly  or  consequentially. 
To  this  extent  the  doctrine  has  certainly  never  been 
carried  in  Eno;land.^ 


1  Paul  Voet,  De  Statut.  §  4,  ch.  3,  ^  15,  p.  156,  edit.  1661  ;  Liverm. 
Dissert.  ^  51,  52,  p.  54. 

2  Liverm.  Dissert.  §  57  to  59,  p.  58,  59. 

3  Ante,  §  93  e. 


CII.  IV.]         CAPACITY  OF  PERSONS.  145 

§  93  n.  In  the  case  already  alluded  to  in  the  English 
courts,  where  the  question  was,  w^hether  a  son,  born  of 
Scottish  parents  in  Scotland  before  marriage,  but  who 
afterwards  intermarried  there,  could  inherit  lands  in 
England,  as  heir,  there  was  much  learned  discussion  on 
the  point.  The  Court  of  King's  Bench  decided  in  the 
negative,  and  that  opinion  was  afterwards,  upon  a  writ 
of  error  to  the  House  of  Lords,  held  by  all  the  Judges 
of  England  to  be  correct.  But  it  not  being  satisfactory, 
the  case  has  since  been  ordered  to  be  reargued,  and  is 
still  pending.^  Lord  Brougham  upon  this  occasion  ex- 
pressed an  opinion  directly  opposed  to  that  of  the  learned 
judges.  It  may,  therefore,  be  well  to  present  a  summary 
of  the  reasoning  on  each  side  of  the  question,  and  thus 
to  exhibit  the  grounds  of  difference. 

§  93  0.  It  was  conceded,  on  all  sides,  that  the  right  to 
inherit  lauds  in  England  must  depend  upon  the  laws  of 
England ;  in  other  words,  that  the  right  of  inheritance 
follows  the  law  of  the  rei  sitce,  and  not  that  of  the  do- 
micil  of  the  parties.  In  every  case,  therefore,  in  which 
an  inheritance  is  sought  in  England,  the  question  is, 
whether  the  claimant  is  the  heritable  heir  according  to 
the  law  of  England.  The  learned  Chief  Baron  Alexan- 
der, who  delivered  the  opinion  of  the  Judges  against 
the  Scottish  claimant,  (though  legitimate  in  Scotland,) 
reasoned  to  this  effect.  He  admitted,  that  the  status  or 
condition  of  the  claimant  must  be  tried  by  the  law  of 
Scotland,  where  that  status  originated ;  that  by  the  law 
of  Scotland  the  claimant  was  clearly  legitimate,  and 
must  be  held  so  everywhere.     But  he  insisted,  that  the 


[1  It  has  since  been  elaborately  reargued,  and  the  decision  of  the  King's 
Bench  unanimously  affirmed  ;  the  question,  therefore,  may  now  be  consi- 
dered as  at  rest.     See  Birthvvhistle  v.  Vardill,  7  Clark  &  Finn.  895] 

CONFL.  13 


146  CONFLICT    OF   LAWS.  [CH.  lY. 

question  was  not^  whether  the  claimant  was  legitimate 
or  not ;  but  whether  he  was  heir  in  England  ;  that  he 
might  be  legitimate,  and  yet  might  not  be  heir.  By 
the  law  of  England  no  person  could  inherit  lands  there, 
unless  he  was  born  within  lawful  wedlock.  This  was 
so  expressly  affirmed  by  the  Statute  of  Merton,  which 
declared,  that  "  he  is  a  bastard,  that  is  born  before  the 
marriage  of  his  parents."  In  order,  therefore,  to  see, 
whether  the  claimant  was  entitled,  it  was  not  sufficient 
to  ascertain,  whether  he  was  legitimate  ;  but  also  to  as- 
certain, whether  he  was  born  in  lawful  wedlock ;  for 
that  circumstance  is  essential  to  heirship  in  England. 
Lord  Coke  has,  indeed,  said ;  Hceres,  in  the  legal  un- 
derstanding of  the  common  law,  implieth,  that  he  is  ex 
justis  miptiis  procreatus ;  for.  Hares  legitimus  est,  qiiem 
miptice  demonstrantr  But  his  expression  would  have 
been  more  accurate  if,  instead  of  saying  ex  justis  nvptiis 
p7'ocreatus,  he  had  said,  ex  justis  nuptiis  natiis.  As  to 
the  argument  used  for  the  claimant,  that  he  is  deemed 
born  in  lawful  wedlock,  because  by  a  presumption  of 
the  Scottish  law,  a  presumption  juris  et  de  jure,  there  was 
a  marriage  anterior  to  the  procreation,  it  is  a  mere  fic- 
tion of  that  law  ;  and  cannot  govern  in  England,  where 
the  actual  fact  of  birth  after  marriage  decides  the  right. 
The  cases  alluded  to,  where  illegitimacy  in  the  place  of 
birth  settled  the  question  against  the  heirship,^  are  per- 
fectly consistent  with  this  doctrine  ;  for  both  facts  must 
concur  to  establish  heirship  in  England,  legitimacy,  and 
birth  after  marriage.  In  these  cases  the  first  fact  was 
entirely  wanting,  and  in  the  first  step,  therefore,  in  the 
claimant's  title,  the  ground  sunk  under  him.^ 

•  Ante,  §  87. 

2  His  Lordship's  opinion  deserves  here  to  be  cited  at  large.     "  As  to  the 
first  of  these  questions,  I  believe  I  express  the  opinion  of  the  Judges, 


CH.  IV.]  CAPACITY  OF  PERSONS.  147 

§  93  ji;.  On  the  ottier  hand,  the  reasoning  of  Lord 
Brougham   was   to  this  effect.     The  reasoning  of  the 


when  I  say,  in  the  well-considered  language  of  Lord  Stowell,  in  the 
case  of  Dalrymple  v.  Dalrymple,  '  The  cause,  being  entertained  in  an 
English  court,  must  be  adjudicated  according  to  the  principle  of  the 
English  law,  applicable  to  such  a  case  ;  but  the  only  principle,  applicable 
to  such  a  case  by  the  law  of  England  is,  that  the  status  or  condition  of 
the  claimant  must  be  tried  by  reference  to  the  law  of  the  country,  where 
the  status  originated  ;  having  furnished  this  principle,  the  law  of  England 
withdraws  altogether,  and  leaves  the  question  of  status  in  the  case 
put  to  the  law  of  Scotland.'  Such  is  the  sentiment  of  that  great  Judge, 
and  such  is  his  language,  varied  only  so  far  as  to  apply  to  a  question  of 
legitimacy,  what  was  said  of  a  question  respecting  the  validity  of  mar- 
riage. When  the  question  of  personal  status  has  been  settled  upon 
these  principles,  when  it  has  been  ascertained  what  the  claimant's  cha- 
racter and  situatioa  are,  it  becomes  then  necessary  to  inquire,  what  are 
the  rules  and  maxims  of  inheritance,  which  the  law  of  that  country, 
where  the  inheritance  is  placed,  and  whose  tribunals  are  to  decide  upon 
it,  has  stamped  and  impressed  upon  the  land  in  debate.  In  order  the 
more  distinctly  to  explain  what  is  meant,  I  will  suppose  a  case  in  many 
circumstances  resembling  the  present.  In  addition  to  the  circumstances 
stated  in  the  question,  let  it  be  further  supposed,  that  the  father  and 
mother  of  the  claimant  had,  after  their  marriage,  one  or  more  sons  born 
to  them.  Suppose  then  the  present  claim  to  be  made.  The  first  inquiry 
having  been  satisfied,  and  it  being  upon  that  inquiry  perfectly  ascer- 
tained, that  the  claimant  is  the  eldest  legitimate  son  of  his  deceased 
parent  for  the  purpose  of  taking  land,  and  for  every  other  purpose,  by 
the  law  of  Scotland,  it  will  next  be  requisite  to  inquire,  what  are  the 
rules  and  maxims  of  inheritance,  which  the  law  of  England  has  im- 
pressed upon  that  land,  which  is  the  subject  of  the  claim.  Let  it  further 
be  supposed,  that  upon  this  inquiry  it  shall  turn  out,  that  the  land  claimed 
is  of  that  description  which  is  ealled  Borough  English.  This  being 
proved,  we  think  it  clear,  that  the  claimant's  legitimacy  by  the  law  of 
Scotland,  his  right  to  inherit  by  that  law,  will  give  the  claimant  no 
right  whatever  to  the  land  in  England  held  in  Borough  English.  The 
comity  between  nations  is  conclusive  to  give  to  the  claimant  the  cha- 
racter of  the  eldest  legitimate  son  of  his  father,  and  to  give  him  all  the 
rights,  which  are  necessarily  consequent  upon  that  character ;  but  what 
these  rights  are  respecting  English  land  must  be  left  to  the  law  of 
England,  and  the  comity  is  totally  ineffectual  to  alter,  in  the  slightest 
degree,  the  rules  of  inheritance  and  descent,  which  the  law  of  England  has 
attached  to  this  English  land.  It  would,  unquestionably,  descend  upon  the 
youngest  son.    I  am  anxious  to  mark  clearly  the  distinction,  which  I  have 


148  CONFLICT    OF   LAWS.  [cil.  IV. 

judges  admitted  the  validity  of  tTie  marriage,  and  the 
status  of  legitimacy  of  the  claimant.     But  it  was  said, 


pointed  out,  because  it  is  upon  that  distinction  that  our  opinion  turns.  I 
will,  therefore,  illustrate  it  by  another  example.  Take  the  case  of  Ilderton 
V.  Ilderton  (2  H.  Black.  145)  ;  that  is  the  case  of  a  claim  to  dower  by  a 
foreign  widow  ;  whether  she  is  a  widow  or  not,  that  is,  whether  she  was  the 
lawful  wife  of  the  man,  who  was,  during  the  coverture,  seized  of  the  land, 
is  a  question,  which  the  law  of  England  permits,  upon  a  claim  to  English 
land,  to  be  determined  by  the  foreign  law,  the  law  of  the  country,  where  the 
contract  of  marriage  was  made  ;  there  the  comity  stops.  When  her  charac- 
ter of  widow  shall  have  been  fixed  according  to  these  foreign  rules,  the  law  of 
England  comes  into  action  ;  and,  proceeding  inexorably  by  its  own  provi- 
sions and  regulations,  decides  what  are  the  interests  in  the  English  land, 
which  her  character  of  widow  has  conferred  upon  her.  It  inquires,  what 
are  the  rules,  which  attach  upon  the  particular  land  in  favor  of  a  widow. 
If,  upon  that  inquiry,  it  appears,  that  the  land  is  subject  to  the  common 
law,  it  will  give  her  a  third  ;  if  it  appears  to  be  gavelkind,  one  half, 
while  she  remains  casta  et  sola.  If  the  land  be  customary  land  of  any 
manor,  the  custom  must  be  looked  into  ;  and  she  can  have  only  what  that 
custom  shall  bestow,  however  strange  and  capricious  that  custom  may  be. 
The  distinction,  to  which  I  am  directing  your  Lordship's  attention,  is  very 
familiar  to  foreign  jurists,  and  is  noticed  by  them  as  the  difference  be- 
tween real  and  personal  status ;  the  last  being  those  which  respect  the 
person,  and  follow  it  everywhere  ;  the  first  being  those  which  are  con- 
nected with  the  land,  and  adhere  to  it,  and  are  as  immovable  as  the  sub- 
ject to  which  they  are  applied.  My  lords,  it  appears  to  us,  that  the  an- 
swer to  the  question,  which  your  Lordships  have  put,  must  be  founded 
upon  this  distinction  ;  —  while  we  assume  that  B.  is  the  eldest  legitimate 
son  of  his  father,  in  England  as  well  as  in  Scotland,  we  think  that  we 
have  also  to  consider,  whether  that  status,  that  character,  entitles  him  to 
the  land  in  dispute,  as  the  heir  of  that  father;  and  we  think  that  this  ques- 
tion, inasmuch  as  it  regards  real  property  situated  in  England,  must  be 
decided  according  to  those  rules  which  govern  the  descent  of  real  pro- 
perty in  that  country,  without  the  least  regard  to  the  rules  which  govern 
the  descent  of  real  property  in  Scotland.  We  have  therefore  considered, 
whether,  by  the  law  of  England,  a  man  is  the  heir  of  English  land, 
merely  because  he  is  the  eldest  legitimate  son  of  his  father.  We  are  of 
opinion,  that  these  circumstances  are  not  sufficient  of  themselves,  but 
that  we  must  look  further,  and  ascertain  whether  he  was  born  within  the 
state  of  lawful  matrimony  ;  because,  by  the  law  of  England,  that  circum- 
stance is  essential  to  heirship  ;  and  that  is  a  rule  not  of  a  personal 
nature,  but  of  that  class,  which,  if  I  may  use  the  expression,  is  sown  in 
the  land,  springs  out  of  it,  and  cannot,  according  to  the  law  of  England, 


CH.  IV.]  CAPACITY  OF  PERSONS.  149 

that   the   question  was  of  heirship.     That  was   true. 
But,  then,  who  was  the  heir  ?    Why,  according  to  the 


be  abrogated  or  destroyed  by  any  foreign  rule  or  law  whatsoever.  It  is 
this  circumstance,  which,  in  my  judgment,  dictates  the  answer  we  must 
give  to  your  Lordship's  question,  namely,  that  in  selecting  the  heir  for 
English  inheritance,  we  must  inquire  only  who  is  that  heir  by  the  local 
law.  It  has  appeared  to  us,  that  the  vice  of  the  appellant's  argument 
consists  in  treating  the  question  of  who  shall  be  heir  to  English  land,  as  a 
question  of  personal  status.  So  it  is,  no  doubt,  up  to  a  certain  point,  but 
beyond  that  point  becomes  a  question  to  be  decided  entirely  by  the  local 
rules,  relating  to  real  property  in  the  realm  of  England.  That  the  rule  of  the 
English  law  is  what  I  have  represented,  can  hardly  require  proof.  If  the 
argument  from  the  comity  of  nations  be  shaken  off,  no  man  will  doubt 
that  a  person  legitimated  per  subsequens  matrimonium  is  not  the  heir  of 
English  land.  What  my  Lord  Coke  says,  in  page  7  of  the  first  Institute, 
affoids  the  rule  :  — '  Haeres,  in  the  legal  understanding  of  the  common  law, 
implieth  that  he  is  ex  justis  nuptiis  procreatus,  for  Heeres  legitimus  est, 
quem  nuptiae  demonstrant.'  Perhaps  my  Lord  Coke's  expression  would 
have  been  more  precise  and  accurate,  if,  instead  of  saying  '  ex  justis  nup- 
tiis procreatus,'  he  had  said,  '  ex  justis  nuptiis  natus.'  But  this  is  what 
is  meant,  as  all  experience  shows.  It  would  be  useless  to  follow  this 
further  ;  but  it  will  be  material  to  recollect,  that  this  maxim,  which  per- 
vades all  our  books,  and  which  is  confirmed  by  all  our  practice,  though  it 
is,  in  form,  a  description  of  the  person,  who  shall  be  heir,  is,  in  substance, 
in  our  opinion,  a  maxim  regarding  the  land,  describes  one  of  its  most  im- 
portant qualities,  traces  out  the  course  in  which  it  shall  descend,  and  is  no 
more  liable  to  be  broken  in  upon  by  any  foreign  constitution,  than  are  the 
degree  of  interest,  which  the  heir  shall  take  in  the  land,  the  conditions,  on 
which  he  shall  hold  it,  the  proportion,  which  a  woman  shall  obtain  as  a 
widow,  or  the  limitations  and  conditions  attached  to  her  estate.  I  have 
endeavored  to  state  the  principles  and  to  show  the  course  of  reasoning, 
which  has  conducted  my  learned  brothers  and  myself  to  the  conclusion, 
that  B.,  the  person  designated  by  your  Lordships  is  not  entitled  to  the 
property  in  question  as  the  heir  of  A.  Before  I  finish  I  will  notice  two 
arguments  used  on  behalf  of  the  appellant,  which  merit  particular  atten- 
tion. It  is  said,  for  the  appellant,  that  according  to  the  rule  we  adopt,  if 
he  is  born  in  lawful  wedlock,  he  fulfils  every  condition  required  of  him. 
Now  they  say  he  is  born  in  lawful  wedlock,  because,  by  a  presumption  of 
the  Scottish  law,  a  presumption  juris  et  de  jure,  there  was  a  marriage 
anterior  to  his  procreation.  It  is  by  force  of  this  presumption,  that  he  is 
legitimate  :  by  this  fiction  he  is  born  within  the  pale  of  lawful  matrimony. 
We  know,  that  this  fiction  is,  by  many  respectable  writers  on  the  Scottish 
law,  represented  as  accompanying  the  legitimation  per  subsequens  matri- 
13* 


150  CONFLICT    OF   LAWS.  [CH.  IV. 

law  of  England,  the  eldest  legitimate   son.     Now,  the 
claimant   answered  to   this  very   character.     He   was 


monium.     But  we  do  not  concede  the  consequence,  deduced  from  it,  as 
applicable  to  the  present  question.    The  question  is,  what  the  law  of  Eng- 
land requires  ;   and,  as  we  are  advised,  the  law  of  England  requires  that 
the  claimant  should  actually,  and  in  fact,  be  born  within  the  pale  of  law- 
ful matrimony  ;  we  cannot  agree  that  the  presumption  of  a  foreign  juris- 
prudence, contrary  to  the  acknowledged  fact,  should  abrogate  the  law  of 
England,  and  that  by  such  a  fiction  a  principle  should  be  introduced 
which,  upon  a  great  and  memorable  occasion,  the  legislature  of  the  king- 
dom distinctly  rejected :  your  Lordships  will  perceive  that  I  allude  to  the 
statute  of  Merton.     It  would  seem  strange  to  introduce  indirectly,  and 
from  comity  to  a  foreign  nation,  a  rule  of  inheritance,  which  may  affect 
every  honor  and  all  the  real  property  of  the  realm  ;  which  rule,  when  pro- 
posed directly  and  positively  to  the  legislature,  they  directly  and  positively 
negatived  and  refused  :  a  refusal,  that,  in  England,  has  obtained  the  ap- 
probation of  every  succeeding  age.     Again,  my  Lords,  it  is  said  that  two 
cases  have  been  decided  in  this  House,  which  are  nearly  in  point,  and  will 
prove  that  the  claim  of  B.  should  be  supported.     These  cases  are  the 
cases  of  Shedden  v.  Patrick,  and  the  case  of  Lord  Strathmore.    These 
two  cases  are  alike  in  principle,  and  establish  the  same  proposition.     In 
the  one  case  the  parents  lived  in  a  state  of  concubinage  in  America,  and 
in  the  other,  in  England.     In  both,  children  were  born  to  them.     After- 
wards, the  parties  married  in  their  respective  countries  ;  by  force  of  their 
marriages  the  American  issue  claimed  Scottish  land,   and   the  English 
issue  claimed  Scottish  honors  :  in  both,  your  Lordships  decided  against 
the  claimants.     Now,  it  is  said,  these  authorities  are  exactly  the  converse 
of  the  present  case.     They  establish  the  principle,  that  the  courts  of  the 
country,  where  the  lands  lie,  in  a  question  respecting  the  heirship  to  these 
lands  or  honors,  inform  themselves,  whether  the  claimant  is  heir,  not  by 
the  law  of  the  country  where  the  lands  lie,  but  in  the  country  of  the 
domicil  where  the  marriage  of  the  parents  was  contracted ;  and  if  he  is 
not  heir  by  that  foreign  law,  his  claim  is  rejected  ;  from  which  they  de- 
duce this  consequence,  that  if  he  is  heir,  his  claim  should  be  sustained. 
This  argument  presents  itself  in  a  very  plausible  shape,  and  was  pressed 
at  the  bar,  as  it  seemed  to  me,  with  striking  ingenuity  and  force.     But  if 
I  have  the  good  fortune  sufficiently  to  explain  the  principles,  which  have 
conducted  my  learned  brothers  and  myself  to  the  opinion  I  have  stated, 
you  will  soon  perceive,  that  these  principles  afford  a  conclusive  answer  to 
it.     The  first  step  to  be  taken  in  every  case  of  this  kind,  as  I  have  already 
explained,  is  to  inquire  into  the  status  of  the  claimant.     The  status,  it  is 
argued,  is  to  be  determined  by  the  law  of  the  foreign  country  ;  with  this 


CH.  IV.]  CAPACITY    OF   PERSONS.  151 

the  eldest  son,  and  lie  was  legitimate.  In  truth,  legiti- 
mate son  means  lawful  son,  and  the  rule  of  inheritance 
is,  that  the  eldest  lawful  son  shall  succeed  the  father. 
But  lawful,  or  not,  depends  upon  the  law,  which  is  to 
govern ;  and  no  other  definition  can  be  given  of  what 
is  lawful,  than  this,  that  he  is  the  lawful  son,  whom  the 
law  declares  such.  "What  law  ?  There  are  two,  it  is 
said,  in  this  case :  the  law  of  the  place  of  the  party's 
birth  and  of  his  parents'  marriage,  and  the  law  of  the 
place  where  the  land  lies.  Then,  which  law  is  to  pre- 
vail ?  The  law  of  the  birthplace.  Any  other  rule 
would  involve  great  inconvenience,  and  be  inconsistent 
with  principle ;  for  then  a  man  would  be  legitimate  in 


the  lex  rei  sitee  does  not  intermeddle,  and  intermeddles  no  more,  when  that 
foreign  law  establishes  the  claimant's  bastardy,  than  when  it  proves  his 
legitimacy.  In  both  the  cases  the  claimants  were  bastards  ;  the  laws  of 
their  own  country,  the  laws  of  their  domicil,  the  laws  of  the  spot,  where 
the  matrimonial  contract  was  entered  into,  declared  them  to  be  illegiti- 
mate :  the  law  which,  by  the  acknowledged  principles,  ascertained  their 
personal  status,  fixed  upon  these  persons  a  character  of  illegitimacy,  fatal 
to  their  claims  :  on  the  first  step  the  ground  sunk  under  them,  and  it  be- 
came impossible  for  them  to  advance.  It  is  obvious,  that  if,  in  the  cases 
to  which  I  am  now  referring,  the  claimants  had  been  declared  heirs  by  the 
Scottish  law,  the  Scottish  law  admitting  of  no  heirship  without  legitimacy, 
must  have  been  called  in  aid  to  bestow  upon  them  that  personal  character 
of  legitimacy  refused  to  them  by  their  own  law ;  in  other  words,  a  law 
foreign  to  their  birth,  to  their  domicil,  and  to  the  marriage  of  their  parents 
would  have  been  held  to  bestow  upon  them  their  personal  status  and  cha- 
racter —  a  decision  certainly  contrary  to  the  acknowledged  principles  upon 
this  subject.  The  character  of  illegitimacy,  attached  to  the  persons  of  the 
English  and  American  claimants  by  their  own  law,  accompanied  them 
everywhere,  and  would  prevent  their  being  received  as  heirs  anywhere 
within  the  limits  of  the  Christian  world.  This  view,  in  our  judgment, 
renders  these  decisions  entirely  consistent  with  the  principles  I  have  un- 
folded, and  prevents  our  considering  them  as  objections  to  the  opinion  I 
entertain,  that  B.  is  not  entitled  to  the  property  in  question,  as  the  heir  of 
A."  Birthwhistle  v.  Vardill,  9  Bligh,  R.  45  to  53.  [See  7  Clark  & 
Finn.  895.] 


152  CONFLICT    OF   LAWS.  [CH.  IV. 

one  place,  and  illegitimate  in  another  ;  legitimate  as 
to  personal  property,  and  illegitimate  as  to  real  pro- 
perty in  the  same  country.  And  this  would  not  only 
affect  him,  but  all  persons,  who  after  his  death  should 
claim  through  him  ;  even  purchasers  claiming  from  him 
or  them. 

§  93  q.  Then  as  to  the  argument,  that  heir  means  he, 
who  is  born  in  lawful  wedlock,  ex  justis  nuptiis.  It 
is  true.  But  what  is  lawful  wedlock  ?  It  is  that, 
which  is  so  by  the  law  of  the  place  of  marriage ;  and 
there  is  no  greater  reason  for  being  bound  by  that  law 
as  to  marriage,  than  there  is  as  to  legitimacy,  as  con- 
sequent upon  the  marriage.  Why  may  not  the  Court 
look  behind  the  marriage,  and  ascertain,  whether  the 
parties  were  competent  to  marry  by  the  law  of  Eng- 
land ?  It  is  not  correct  to  say,  that  the  law  of  the 
place  of  marriage  governs  as  to  that  alone,  it  must 
govern  as  to  all  the  effects  consequent  thereon.  So  it 
was  held  by  Huberus.  So  it  was  held  in  the  cases  of 
Crawford  v.  Patrick,  and  Strathmore  v.  Bowes,  already 
alluded  to.^  In  Scotland  the  child,  born  before  the 
marriage  ceremony  has  been  performed,  is  legitimate, 
not  because  of  the  subsequent  act  of  his  parents  ;  but 
because  he  is  considered  as  born  in  lawful  wedlock. 
The  marriage  is  held  to  have  preceded  his  birth,  and  so 
he  is  deemed  non  legitimatiis,  sed  legitimus  ah  initio.  This 
is  not  a  mere  refinement  or  fiction ;  because  in  Scotland 
marriage  is  a  consentient  contract ;  and  such  consent 
and  marriage  before  the  birth  are  deemed  to  be  evi- 
denced by  the  subsequent  open  ceremony  and  celebra- 
tion of  the  marriage.     This  is  no  more  a  fiction,  than 


'  Ante,  ^  87. 


CH.  IV.]  CAPACITY    OF   PERSONS.  153 

the  English  law  as  to  this  very  point.  If  in  England  a 
child  is  born  the  day  after  the  marriage,  he  is  deemed 
legitimate,  although  procreated  long  before.  The  law 
will  not  inquire  into  the  fact. 

§  93  r.  As  to  the  statute  of  Morton,  it  has  no  bearing 
on  the  subject.  That  statute  applies  only  to  children 
born  in  England.  *  It  is  no  authority  for  saying,  that  he 
only  can  inherit  English  lands,  whom  that  statute  declares 
legitimate.  That  statute  can  in  no  just  sense  apply  to 
persons  born  out  of  England.  Their  status,  as  to  legiti- 
macy, depends  not  on  that  statute  ;  but  on  the  laws  of 
the  country  of  their  birth.  He  is  legitimate,  whom  the 
law  of  his  birth  declares  to  be  so.  He  is  lawful  heir, 
whom  the  law  of  his  birth  declares  to  be  born  in  lawful 
wedlock.  We  are  necessarily  driven  to  this  conclu- 
sion ;  and  we  must  resort  to  the  foreign  law  to  solve 
all  such  questions.  If  it  is  said,  that  he  is  the  lawful 
heir  in  England,  who  is  the  eldest  son  born  within  law- 
ful wedlock,  it  is  but  changing  the  position  of  the  point ; 
for  we  may  just  as  well  say,  that  he,  who  is  the  eldest 
son  born  in  lawful  wedlock,  (and  so  the  claimant  is,)  is 
the  lawful  heir  in  England.  The  real  point  of  difficulty 
was  not  met  nor  considered  by  the  learned  Judges. 
The  very  question  was,  whether  the  law  of  England  did 
not  take  the  rule,  as  to  legitimacy,  the  eldest  son  born 
within  lawful  wedlock,  from  the  very  status  as  to  these 
points  recognized  and  held  by  the  law  of  Scotland.  The 
whole  constituted  his  personal  status  ;  and  that  personal 
status  travelled  with  him  into  England.^ 


1  It  may  be  far  more  satisfactory  to  the  learned  reader  to  have  his  Lord- 
ship's reasoning  at  large  in  his  »wn  words.  "  In  approaching  this  ques- 
tion, there  are  some  things  not  disputed.  It  is  admitted,  that  the  validity 
of  a  marriage  must  depend  on  the  law  of  the  country,   where  it   is  had, 


154  CONFLICT   OF   LAWS.  [CH.  IV. 

§  93  s.  Another  question  also  has  arisen  in  England, 
whether  a  child  born  before  marriage  in  one  country,  of 


and  that  consequently  the  parents  of  this  party  were  validly  married.  It 
seems  also  to  be  agreed,  that,  generally  speaking,  legitimacy  is  a  status, 
and  must  be  determined  by  the  law  of  the  country  to  which  the  party 
belongs.  But  it  is  said  by  those,  who  support  thie  judgment,  that  whether 
the  party  here  is  legitimate  or  not,  is  no  question  before  us  ;  the  only 
question  being,  it  is  alleged,  whether  or  not  he  is  the  heir  to  an  English 
real  estate.  This  distinction,  I  confess,  appears  to  me  founded  on  an 
inaccurate  view  of  the  subject.  It  is  true,  that  the  question  here  arises 
upon  the  claim  of  an  heir  as  such,  and  that  therefore  the  only  question 
may  be  said  to  be,  whether  he  is  heir  or  not.  But  it  is  also  very  possible, 
that  this  question  may  turn  wholly  upon  another,  namely,  whether  or  not 
the  claimant  is  eldest  legitimate  son  of  his  father,  the  person  last  seized  1 
Nor  do  I  well  see  how  legitimacy  can  ever  come  in  question  in  any 
other  way,  than  as  connected  with  the  claim  to  succession,  either  real  or 
personal,  in  England,  or  in  Scotland  either,  unless  in  the  single  case  of  a 
declarator  of  bastardy  or  of  legitimacy,  —  a  proceeding  unknown  in  the 
English  law.  It  is  therefore  by  no  means  sufficient  for  deciding  this 
case  to  say,  that  the  question  touches  not  legitimacy,  but  inheritance  ;  not 
the  ptjisonal  status  of  the  party,  hut  hie  right  to  real  property.  It  may 
touch  both  these  matters,  and  the  latter  may  wholly  depend  upon  the 
former.  In  truth,  legitimate  son  means  lawful  son  ;  and  the  rule  of 
inheritance  is,  that  the  eldest  lawful  son  shall  succeed  to  the  father  :  but 
*  lawful '  or  '  not '  depends  upon  the  law,  which  is  to  govern  ;  and  no 
other  definition  can  be  given  of  what  is  lawful  than  this,  that  he  is  lawful 
son,  whom  the  law  declares  to  be  such.  What  law  ?  There  are  two,  it 
is  said,  in  this  case  —  the  law  of  the  place  of  the  party's  birth,  and  of  his 
parents'  marriage,  and  the  law  of  the  place  where  the  land  lies.  Then 
which  of  these  two  laws  shall  prevail  1  The  whole  inclination  of  every 
one's  mind  must  be  towards  that  law,  which  prevails,  where  each  person 
is  born,  and  where  his  parents  were  married,  supposing  the  countries  to  be 
one  and  the  same  ;  and  if  they  differ,  1  should  then  say  certainly  the  law 
of  the  birthplace.  Nor  can  any  thing  be  more  inconvenient  or  more  in- 
consistent with  principle,  than  the  inevitable  consequence  of  taking  the 
lex  loci  rei  sitae  for  the  rule  ;  because  this  makes  a  man  legitimate  or  ille- 
gitimate, according  to  the  place  where  his  property  lies,  or  rights  come  in 
question  ;  legitimate,  when  he  sues  for  distribution  of  personal  estate  ;  a 
bastard,  when  he  sues  for  succession  to  real  ;  nay,  legitimate  in  one 
country,  where  part  of  his  land  may  lie  ;  and  a  bastard  in  some  other, 
where  he  has  the  residue.  So,  in  like  in^nner,  all,  who  claim  through 
him,  must  have  their  rights  determined  by  the  same  vague  and  uncertain 
canon  ;  a  circumstance,  which  I  nowhere  find  adverted  to  below.     All  the 


CH.  IV.]         CAPACITY  OF  PERSONS.  155 

parents  domiciled  in  that  country,  by  -whose  laws  a  sub- 
sequent marriage  would  not  legitimate  him,  would  by  a 


learned  Judges  proceed  upon  the  case  being  one  of  an  inheritance  claimed 
by  the  party  himself.  But  what  if  he  were  dead  years  ago,  and  another 
claimed  an  estate  in  England,  to  which  he  (the  alleged  bastard)  never  had 
been,  and  never  could  have  been  entitled,  an  estate,  for  example,  descend- 
ing from  a  collateral,  who  took  it  by  purchase  after  the  death  of  the  al- 
leged bastard  1  Then  the  pedigree  of  the  claimant  must  be  made  out 
through  legitimate  persons  ;  and  the  question  of  legitimacy  is  raised  as  to 
one,  who  is  not  himself  claiming  any  land  ;  who  never  did  or  could  claim 
any  land  ;  and  it  is  not  raised  in  respect  of  any  right  in  him  to  inherit  ; 
any  right  to  be  called  the  heir  to  any  land.  I  apprehend  this  shows 
strongly  the  necessity  of  taking  another  view,  than  the  learned  Judges 
seemed  to  have  deemed  sufficient  for  getting  over  the  difficulty  of  the  case  ; 
and  of  admitting,  that  there  is  a  status  of  legitimacy,  which  is  personal, 
and,  travelling  about  with  the  individual,  must  be  determined  by  the  law 
of  his  country.  In  the  argument  for  the  judgment  below,  it  is  thought 
enough  to  say,  that  heir  means  he  who  is  born  in  lawful  wedlock  —  ex 
justis  nuptiis.  Then  what  is  lawful  wedlock?  Is  there  any  greater  rea- 
son for  being  bound  by  the  law  of  the  country  where  the  marriage  con- 
tract was  made,  in  deciding,  whether  or  not  the  wedlock  was  lawful,  than 
there  is  for  being  governed  in  ascertaining  the  legitimacy  of  the  issue  of 
the  marriage  by  the  law  of  the  country  where  that  issue  was  born,  more 
especially  when  it  was  also  the  country  where  the  marriage  was  had  ? 
But  can  the  Court  stop  short,  according  to  its  own  principle,  at  the  mere 
fact  of  the  marriage  being  according  to  the  lex  loci  contractus  ?  Do  not 
the  principles,  on  which  their  decision  proceeds,  demand  this  further  in- 
quiry,—  Were  the  parties  able  to  marry  by  the  lex  loci  rei  sitas  1  and  thus 
a  door  is  opened  to  the  further  examination  of  how  far  a  preceding  divorce 
of  one  of  the  parties  was  sufficient  to  dissolve  a  previous  English  mar- 
riage. All  such  difficulties  are  got  rid  of  by  holding  the  lex  loci  contrac- 
tus and  nativitatis  as  governing  the  validity  of  the  contract  and  legitimacy 
of  its  issue  ;  but  they  are  not  to  be  got  over  in  this  way  by  any  argument 
which  does  not  with  equal  force  apply  to  holding  that  the  legitimacy  of 
the  issue  is  a  question  equally  to  be  governed  by  the  lex  loci  contractus 
and  the  law  of  the  birthplace.  Nor  is  it  correct  to  say,  as  the  Judges 
below  assumed,  that  the  lex  loci  only  influences  the  validity  of  the  con- 
tract, and  extends  not  to  its  effiects.  The  highest  authorities  have  held 
expressly  the  reverse.  Huber,  in  the  Treatise  De  Conflictu  Legum,  which 
forms  part  of  his  larger  work,  end  is  constantly  cited  as  the  greatest  au- 
thority on  this  question,  says,  '  Non  solum  ipsi  contractus  ipsajque  nuptise 
certis  locis  rite  celebratjc  ubique  pro  justis  et  validis  habentur,  sed  etiam 


156  CONFLICT    OF    LAWS.  [CH.  IV. 

marriage  of  his  parents  in  another  country,  by  whose 
laws  such  subsequent  marriage  would  legitimate  him, 


jura  et  effectus  contractutn  nuptiarumque  in  iis  loeis  recepta  ubique  vim 
suam  oblinebunt.'  I.  3,  9.  It  would  be  difficult  to  state  any  thing  more 
clearly  and  properly  the  effect  of  the  matrimonial  contract,  than  the  legiti- 
macy of  the  issue  ;  it  is,  in  fact,  the  main  object,  and  therefore  the  princi- 
pal effect  of  that  contract.  But  to  remove  all  doubt  on  this  subject,  and 
to  extend  the  same  rule  also  to  the  lex  loci  nativitatis  ;  he  adds,  '  Quali- 
tates  personales  certo  loco  alicui  impressas  ubique  circumferri  et  personam 
comiiari,  cum  hoc  effectu  ut  ubivis  locorum  eo  jure  quo  tales  personee  alibi 
gaudent  vel  subjecti  sunt,  gaudeantur  et  subjiciantur.'  This  principle  was 
adopted  and  acted  on  in  two  very  remarkable  cases  by  your  Lordships  then 
proceeding  under  the  advice  of  Lord  Eldon  ;  I  mean  Crawford  v.  Patrick, 
and  Strathmore  v.  Bowes.  In  the  former,  a  child  having  been  born  before 
marriage  in  America,  where  the  English  law  prevails,  claimed  a  Scotch 
estate  in  respect  of  the  subsequent  marriage  of  his  parents  there,  of  whom 
the  father  was  Scotch.  He  contended^  that  the  question  having  arisen 
upon  a  real  estate  in  Scotland,  the  Court  of  Session  was  bound  to  admi- 
nister the  law  loci  rei  sitas,  and  that  law  declared  him  legitimate.  But  the 
Court  below^  and  your  Lordships  held,  that  legitimacy  is  a  status  to  be 
determined  by  the  law  of  the  party's  birthplace,  or  at  any  rate,  by  that 
of  the  country,  vihere  the  marriage  of  his  parents  was  had,  as  well  as 
himself  born  ;  and  they  held  him  bastard  in  Scotland,  where  the  land  lay, 
because  he  was  bastard  in  America,  where  his  birth  and  his  parents'  mar- 
riage took  place.  In  Strathmore  v.  Bowes,  a  marriage,  had  in  London 
after  the  birth  of  the  child,  was  held  not  to  legitimate  the  issue  either  as 
to  Scotch  honors,  or  estate  on  the  same  grounds  ;  and  in  both  these  cases 
one  of  the  points  made  for  the  judgment  was  the  absurdity  of  holding  the 
same  person  to  be  bastard  in  one  country  and  legitimate  in  another.  It  is 
plain  that  legitimacy  has  but  one  meaning,  namely,  born  in  lawful  wed- 
lock. Now  in  Scotland  the  child  born  before  the  marriage  ceremony  has 
been  performed  is  legitimate,  not  because  of  a  subsequent  act  of  his  pa- 
rents, but  because  he  is  considered  as  born  in  lawful  wedlock.  The  mar- 
riage is  held  to  have  preceded  his  birth,  and  according  to  the  doctrine  and 
language  of  the  civil  law,  from  which  Scotland  and  other  countries  have 
borrowed  this  principle,  he  is  considered  as  non  legitimatus,  sed  legitimus 
ab  initio,.  Nor  is  this  a  mere  fiction  of  law  and  a  technical  refinement. 
Marriage  in  Scotland  is  a  consensual  contract,  and  perfected  by  consent 
alone.  But  this  may  be  given,  and  the  contract  made  in  two  ways,  either 
per  verba  de  praesenti,  or  by  a  promise  subsequente  copula.  Now  in  the 
latter  case,  the  copula  makes  the  previous  promise  a  consent ;  it  turns  the 
promise  concerning  the  future  into  a  present  consent.  A  child  then,  born 
in  the  interval  between  the  promise  and  the  copula,  would  be  legitimate, 


CH.  IV.]  CAPACITY  OF  PERSONS.  157 

become  legitimate,  so  as  to  inherit  lands  in   the  latter 
country.     It  has  been  held  by  the  House  of  Lords,  that 


for  the  copula  would  show  that  consent,  and  therefo're  a  marriage,  had 
preceded  his  birth.     But  so  does  a  marriage  after  the  birth,  for  that  raises 
the  legal  presumption,  that  there  was  a  consent  before  the  birth  and  at  the 
cohabitation.     The  cohabitation  is  held  to  have  been  a  consent  and  a  mar- 
riage ;  the  ceremony  is  only  held  as  evidence  of  that  previous  consent  and 
contract.     So  much  is  this  the  case,  that  if  either  party  was  married  to 
another  at  the  time  of  the  child's  birth,  or  during   the   interval   between 
that  birth  and  the  ceremony,  no  legitimation  takes  place,  because  no  room 
exists  for  the  presumption  of  law,  that  the  consent  or  marriage  took  place 
before  the  birth.     All  this  is  certain  and  clear,  but  the  learned  Judges  in 
the  Court  below  appear  not  to  have  taken  it  into  their  consideration.     The 
judgment  is  rested  entirely  upon  the  statute  of  Merton,  and  it  is  contended 
that,  by  that  famous  Act,  he  is  declared  a  bastard,  who  is  born  before  the 
marriage  of  his  parents  :  no  doubt  so  he  is   in   England  ;  and   no  doubt 
bastardy,  the  status  of  bastardy,  is*what  the  English  law  is  there  dealing 
with.     But  is  this  an  authority  for  saying  that  he  only  shall  inherit  Eng- 
lish lands,  whom  that  statute  declares  legitimate  ?     It  is  said,  that  the  lex 
loci  rei  sitaj  must  govern  the  succession   to    real  estate  ;  undoubtedly  it 
must  ;  and  if  that  law  gives  it  in  Kent  to  all  the  sons,  and  in  Brentford  to 
the  youngest,  and  elsewhere  to  the  eldest,  the  several  sons  are  the  heirs 
in  those  several  places.     But  when  it  is  said  the  lawful  issue  shall  take,  I 
agree  ;  I  too  say  only  the  legitimate  son  or  sons  shall  inherit  ;  but  to  find 
who  are  the  legitimate  sons,  1  must  ask  the  law  of  the  birth-place,  which 
fixes  the  status  of  legitimacy  ;  of  the  personal  quality,  according  to  Huber, 
that  travels  round  everywhere  with  the  party.  But  the  argument  assumes  a- 
narrower  and  apparently  closer  form  still,  for  it  is  said  that  the  statute  de- 
clares those  only  inheritable,  who  are  born  in  marriage,  and  that   Lord 
Coke  accordingly  defines  the  heir  to  be  him,  who  is  ex  justis  nuptiis  pro- 
creatus.     There  is  in  this,  however,  a  great  fallacy  :  '  Born  in  marriao-e  ' 
or  not ;  '  ex  justis  nuptiis  procreatus  '  or  not  ;  is  to  be  determined  by  some 
law  or  other  ;  it  is  not  a  question  that  answers  itself  and  in  one  way  only. 
Then  what  law  shall  determine  1     Certainly  either  the  law  of  the  coun- 
try where  the  party  was  born,  or  where  the  marriage  was  had  ;  the  law 
either  of  the  country,  where  the  nuptias  were  had,  or  where  the  procrea- 
tio  took  place.     A  question  might  arise,  where  the  events   happened   in 
different  countries  ;  it  might  then  be  doubted  which  law  should  govern  ; 
which  should  be  resorted  to  for  an  answer  to  the   question.     But  where 
both  events  happened  in  the  same  country,  as  here,  there  seems  no  doubt 
at  all  in  the  matter.    Now  the  law  of  the  country,  where  both  the  marriage 
and  the  birth  took  place,  declares  that  the  party  was  born  in  lawful  wed- 
lock ;  that  he  was  ex  justis  nuptiis  procreatus ;  and  wholly  denies,  that 
CONFL.  14 


158  CONFLICT    OF   LAWS.  [CH.    IV. 

the  mere  fact  of  marriage  in  sucli  country,  where  there 
^Yas  no  change  of  the  domicil  of  the  parents,  would  not 


he  was  born  before  marriage,  or  out  of  wedlock.  But  it  is  said,  that  this 
is  a  fiction,  and  that  our  law  cannot  import  the  fictions  of  a  foreign  sys- 
tem, though  its  principles  we  are  allowed  to  import.  This  distinction  I 
do  not  profess  to  comprehend  ;  what  is  a  fiction,  but  a  principle?  It  is 
only  one  particular  view,  which  the  law  takes,  and  one  doctrine  which  it 
lays  down.  Suppose  a  Scotch  Court  v,ere  to  deny  the  legitimacy  of  a 
child,  who  was  born  on  the  day  after  his  parents  married  in  England, 
should  we  not  say,  that  a  gross  absurdity  was  committed  ?  Should  we 
not  say,  the  child  was  born  in  lawful  wedlock,  and  hold  the  doctrine  ab- 
surd, which  should  question  his  being  lawfully  begotten  1  Nay,  suppose 
a  gift,  in  the  usual  terms,  to  the  heirs  of  the  body  lawfully  begotten  ;  we 
should  let  the  child  born  the  day  after  marriage  take  under  such  gift,  al- 
though it  was  clearly  not  lawfully  begotten  in  point  of  fact.  This  is  a 
fiction  exactly  analogous  to  the  Scotchiiction.  The  Scotch  law-  presumes, 
against  the  fact,  the  marriage  to  have  been  had  before  the  birth  of  the 
child  ;  our  law  presumes,  against  the  fact,  the  marriage  to  have  been  had 
before  the  cohabitation  of  the  parents.  The  fiction,  or  rather  presump- 
tion, is  parcel  of  the  legal  principle  in  both,  and  there  can  be  no  reason 
for  importing  the  residue  of  the  doctrine,  and  rejecting  the  presumption  ; 
there  can  be  no  reason  for  importing  the  English  law  presumption  into 
Scotland,  which  does  not  justify  and  require  us  to  import  the  Scotch  law 
presumption  into  England.  It  must  be  recollected,  too,  that  the  special 
verdict  finds  as  a  fact  the  legitimacy  of  the  party,  and  not  his  legitima- 
tion ;  it  finds  as  a  fact,  that  he  is  legitimate  ;  that  is  to  say,  lawfully  born. 
Now  we  know  this  to  mean  by  the  Scotch  law,  born  in  lawful  wedlock  ; 
but  the  finding  in  the  verdict  is  sufficient  ;  for  legitimate,  as  contradistin- 
guished from  legitimated,  means  born  in  lawful  wedlock,  and  can  mean 
nothing  else.  So  in  the  civil  law,  from  whence  this  doctrine  is  wholly 
taken,  both  in  Scotland  and  Holland  and  other  countries,  the  child  is  legi- 
timus,  not  legitimatus,  as  in  the  same  system  of  jurisprudence,  liber  is  a 
free  man,  libertinus,  one  of  the  condition  of  a  freed  man,  ingenuus,  one 
free  born.  If  any  person  were  found  to  be  ingenuus  by  an  inquisition,  we 
should  contend,  that  he  never  had  been  a  slave,  though  a  finding  of  liber 
might  leave  it  equivocal.  In  like  manner,  and  by  parity  of  reason,  a  per- 
son being  found  legitimate,  or  legitimus,  and  not  legitimated  or  legitima- 
tus, excludes  the  supposition  of  his  ever  having  been  a  bastard,  and  shows 
him  to  be  lawfully  born  and  begotten.  Suppose  a  Scotch  estate  devolved 
to  one  born  before  marriage,  as  it  might  by  devise  (or  rather  Scotch  con- 
veyance in  the  nature  of  devise)  to  the  first  son  of  A.,  I  apprehend,  that 
A.  marrying  the  mother  the  day  after  the  devisor's  death,  the  estate  would 


CH.  IV.]  CAPACITY  OF  PERSONS.  159 

give  him  such  a  capacity  to  inherit  land,  and  that  the 
stain  of  illegitimacy  by  his  birth  was  not  wiped  away 


be  vested  in  the  son,  because  he  would  become  legitimate,  though  born 
before  the  death.  But  it  is  unnecessary  to  argue  this,  though  it  illustrates 
the  principle  ;  the  fact  found  is,  that  the  lessor  of  the  plaintiff  was  born  in 
Scotland  legitimate,  or  in  lawful  wedlock.  The  cases  of  Crawford  v. 
Patrick,  and  Strathmore  v.  Bowes,  have  been  already  referred  to,  but 
they  require  another  remark.  They  were  decided  in  this  House,  by  ap- 
peal, it  is  true,  from  Scotland,  and  respecting  the  Scotch  real  estate,  but 
still  by  this  House,  and  upon  general  principles  of  law.  Those  cases 
were  the  precise  converse  of  this  :  they  decided  the  bastardy  of  parties, 
and  on  the  distinct  ground,  that,  as  Lord  Redesdale  said,  they  were  '  bas- 
tard by  the  law  of  their  birth-place,  and  therefore  bastard  in  Scotland, 
where  the  rights  claimed  respected  real  estate.'  It  is  not  more  the  rule  of 
the  English  law,  that  children  born  out  of  wedlock  shall  not  inherit,  though 
their  parents  intermarry,  than  it  is,  the  rule  of  the  Scotch  law  that  such 
children  shall  inherit,  if  their  parents  do  intermarry.  It  is  not  more  alien 
to  the  English  law  to  adopt  the  fiction  that  such  children  are  born  in 
wedlock,  than  it  is  alien  to  the  Scotch  law  to  exclude  this  principle.  The 
English  rule  being  statutory  can  make  no  difference.  A  fixed  and  known 
principle  of  common  law  has  exactly  the  same  force  with  statutory  pro- 
vision. How  then  can  the  opposite  principle  be  adopted  in  two  cases 
identically  the  same  ?  The  Court  below  says,  that  the  English  law  gives 
not  an  estate  to  the  bastard  eigne,  and  that  it  treats  him  as  bastard,  although 
by  the  law  of  his  birth-place  he  was  legitimate.  The  Scotch  law  gives 
the  estate  to  the  bastard  eigne,  regarding  him  as  legitimate,  and  this 
House  adjudged,  that  he  should  not  take  that  estate,  only  because  he  was 
illegitimate  by  the  law  of  his  birth-place.  Your  Lordships  decided,  that 
the  lex  loci  rei  sitae  should  not  be  regarded,  when  it  differed  from  the  lex 
loci  contractus  et  nativitatis  ;  you  decided  that  when  the  former  law  de- 
clared for  legitimacy,  it  should  yield  to  the  latter,  which  declared  for  bas- 
tardy. How  can  you  be  called  upon  here  to  decide  that  the  lex  loci  rei 
sitae  shall  not  overrule  the  other  law,  and  that  again  in  favor  of  bastardy  l 
I  profess  my  inability  to  understand  how  these  two  decisions  of  the  same 
question  can  in  any  way  stand  together  ;  nor  am  I  able  to  perceive,  that 
the  least  attention  was  paid  by  the  Court  below  to  those  important  deci- 
sions of  your  Lordships.  I  perceive  that  the  whole  argument  in  that  Court 
turned  upon  a  question  not  in  dispute  here.  The  learned  Judges  suppose, 
that  they  decide  the  question,  when  they  prove  that  the  English  law  is  to 
govern  the  case,  because  the  question  relates  to  real  property  situated  in 
England.  Now  undeniably  the  English  law  is  to  govern  the  case  in  one 
sense  ;  the  eldest  lawful  son  is  to  succeed  ;  but  who  that  son  is   must  be 


160  CONFLICT    OF    LAWS.  [CH.  IV. 

by  such  a  marriage.-^     And  it  was  intimated,  that,  un- 
der the  like  circumstances  in  other  respects,  the  change 


determined  by  the  law  of  his  birth-place,  and  by  the  fact  found  that,  under 
that  law,  the  lessor  of  the  plaintiff  is  eldest  lawful  son.  Nay,  even  if  we 
take  the  English  law  to  be,  that  lawful  son  or  heir  is  he,  who  was  born  in 
wedlock,  then  we  have  here  the  fact  found,  and  found  as  a  fact,  that  in 
the  country  where  he  was  born,  the  party  was  born  in  wedlock.  No  one, 
it  must  be  always  borne  in  mind,  pretends  to  say,  that  the  English  law 
can  in  any  way  dispose  of  the  whole  question.  Admitting  that  the  rule 
cited  from  Lord  Coke  in  reference  to  the  statute  of  Merton  is  to  govern 
us,  haeres,  qui  ex  justis  nuptiis  procreatus  est,  no  one  contends,  that  the 
question,  what  are  justa  nuptiae,  can  be  determined  otherwise  than  by  a 
reference  to  the  lex  loci  contractus,  or  it  may  be,  loci  nativitatis.  To 
that  foreign  law,  then,  we  must  resort  ;  and  the  only  question  is,  at  what 
period  of  our  inquiry  this  recourse  shall  be  had.  No  more  needs  be  said 
to  show  how  very  far  from  decisive  of  the  present  question  that  position 
is,  which  alone  is  argued  or  defended  by  the  learned  Judges,  namely,  that 
the  law  of  England  must  govern.  It  does  govern,  but  with  the  aid, 
through  the  ministry  of  the  foreign  law.  The  reference  made  to  the  dic- 
tum of  the  Master  of  the  Rolls,  in  Brodie  v.  Barry,  (2  Ves.  and  Bea.  p. 
127,)  does  not  touch  the  case.  All  that  his  Honor  there  said  was,  that 
questions  on  real  rights  must  follow  the  law  of  the  country,  where  the 
land  lies.  This  is  not  denied  ;  nor  was  it  denied  by  this  House,  when  it 
refused  to  consider  W.  Sheddon  or  J.  Bowes,  as  legitimate  in  respect  to 
Scotch  estates,  although  the  law  of  Scotland,  where  those  estates  lay, 
held  them  both  to  be  so  ;  or  rather  would  so  have  held,  had  they  been 
born  in  Scotland.  But  while  this  House  and  the  Court  of  Session  admit- 
ted, that  the  Scotch  law  must  decide,  they  also  held,  that  the  Scotch  law 
refused  estate  to  bastards,  and  that  it  regarded  one  as  a  bastard,  who  was 
so  by  the  law  of  his  birthplace.  That  was  the  same  case  in  principle 
with  this,  in  every  material  respect.  It  is  not  easy  in  such  a  question, 
a  question  raised  on  the  conflictus  legum,  to  omit  all  considerations 
of  convenience  ;  inasmuch  as  it  is  principally  on  views  of  convenience, 
that  the  whole  doctrine  of  what  is  generally  called  comitas  turns.  One 
should  say,  that  nothing  can  be  more  pregnant  with  inconvenience,  nay, 
that  nothing  can  lead  to  consequences  more  strange  in  statement,  than  a 
doctrine,  which  sets  out  with  assuming  legitimacy  to  be  not  a  personal 
status,  but  a  relation  to  the  several  countries,  in  which  rights  are  claimed, 
and  indeed  to  the  nature  of  different  rights.     That  a  man  may  be   bastard 

1  Munro  v.  Saunders,  0  Bligh,R.  4G8  ;  Rose  v.  Ross,  4  Wils.  &  Shaw, 
289.  See  Id.  App.  p.  33  to  p.  89,  where  the  opinions  of  the  Scotch 
Judges  are  also  given  at  large. 


CH.  IV.]  CAPACITY    OF   PERSONS.  161 

of  domicil  of  the  parents  to  the  country,  where  the 
marriage  was  celebrated,  w^ould  not  have  given   any 


in  one  country,  and  legitimate  in  another,  seems  of  itself  a  strong  position 
to  affirm  ;  but  more  staggering  when  it  is  followed  up  by  this  other,  that 
in  one  and  the  same  country  he  is  to  be  regarded  as  bastard,  when  he 
comes  into  one  court  to  claim  an  estate  in  land,  and  legitimate,  when  he 
resorts  to  another  to  obtain  personal  succession  ;  nay,  that  the  same  Court 
of  Equity  (when  the  real  estate  happens  to  be  impressed  with  a  trust) 
must  view  him  as  both  bastard  and  legitimate,  in  respect  of  a  succession 
to  the  same  intestate.  Further  still,  should  he  happen  to  be  next  of  kin 
to  his  uncle,  who  ha3  a  mortgage  upon  the  estate,  he  must  be  denied  his 
succession  to  the  land  of  the  mortgagor  in  his  quality  of  bastard,  and  be 
allowed  to  come  in  as  an  incumbrancer  upon  the  self-same  estate  in  his 
capacity  of  legitimate  son  to  the  same  mortgagor.  All  this  is  assumed  to 
be  the  law  by  the  learned  Judges,  who  have  decided  below,  and  advised 
your  Lordships  here.  They  have  not  assumed,  what  however  they 
cannot  deny,  that  it  is  another  consequence  of  their  doctrine,  to  enable  a 
descendant  of  this  same  bastard  to  claim  through  him,  as  if  he  were  legi- 
timate, while  the  alleged  force  of  the  statute  of  Merton ,  and  of  Lord  Coke's 
commentary  thereupon,  excludes  him  from  taking  to  himself.  In  the  same 
country,  in  the  same  Courts,  in  respect  to  the  same  land,  he  is  both  bas- 
tard and  legitimate  ;  bastard  for  the  purpose  of  his  own  succession,  legiti- 
mate when  the  succession  of  others  is  concerned.  May  I  be  permitted 
most  respectfully  to  express  a  doubt,  whether  or  not  this  question  has  re- 
ceived all  the  consideration,  which  it  deserves  at  the  hands  of  those  learn- 
ed Judges  T  I  know  not,  that  it  carries  the  argument  much  further  ;  but 
there  is  a  proceeding,  well  known  to  your  Lordships  sitting  here  as  a 
Court  of  general  jurisdiction  over  the  whole  United  Kingdom,  though  un- 
known to  the  Courts  of  England  ;  the  process  of  declarator.  Suppose  a 
declarator  of  legitimacy  had  been  brought  in  the  Scotch  Courts  by  the 
lessor  of  this  plaintiff,  the  judgment  would  have  been,  and  quite  as  a 
matter  of  course,  that  he  was  lawful  son  of  Wm.  Birthwhistle  ;  and  the 
present  defendant  being  made  a  party  to  this  suit,  the  judgment  could  be 
given  in  evidence  before  the  Court,  where  the  ejectment  now  before  us 
was  brought.  I  agree,  that  such  a  judgment  does  not  conclusively  bind  ; 
yet  it  would  place  the  conflict  of  the  (.wo  laws  in  a  somewhat  stronger 
light,  if  the  English  Court  should  pronounce  him  bastard,  whom  the 
Scotch  Court,  sitting  in  the  country  of  his  birth,  had  pronounced  lawful 
son.  But  if  both  judgments  were  brought  here  by  appeal  and  writ  of 
error,  as  might  easily  happen,  your  Lordships  would  be  compelled  to 
affirm  the  sentence  of  the  Scotch  Court,  and  yet  you  are  now  asked  to 
affirm  the  opposite  judgment  of  the  King's  Bench.  Let  it  be  observed, 
too,  that  all  this  anomaly  is  in  England  ;  it  begins  and  ends  here  ;  for 
14* 


162  CONFLICT    OF   LAWS.  [CH.  IV. 

better  title  to  inherit,  as  the  stain  of  the  illegitimacy 
would  be  indelible.^  The  converse  case  has  been  decid- 
ed in  France,  where  it  has  been  held,  that,  if  a  child  is 
born  in  a  country  (France)  where  he  would  become  le- 
gitimate by  a  subsequent  marriage,  he  will  become 
legitimate  by  such  subsequent  marriage,  although  the 
marriage  should  take  place  in  a  country  (England) 
where  a  different  law  prevails,  and  where  a  subsequent 
marriage  would  not  have  the  effect  of  rendering  him 
legitimate.^     The  result  of  these  two  cases  seems  to  be, 


the  Scotch  Judges  have  decided  in  such  cases  with  perfect  consistency,  as 
well  as  entire  uniformity.  Those  learned  persons,  whose  familiarity  with 
leg-al  principle,  in  its  enlarged  sense,  is  derived  from  a  deep  study  of  the 
feudal  and  of  the  civil  law,  as  well  as  of  the  modern  jurisprudence  of 
Scotland,  have  been  guided  in  all  their  determinations  of  such  questions 
by  simple,  rational,  and  intelligible  principles.  If  a  declarator  of  legiti- 
macy were  brought  before  them  by  one  born  in  England  before  marriage, 
and  whose  parents  afterwards  intermarried,  their  sentence  would  be,  that 
he  was  illegitimate  ;  and  even  were  he  to  claim  a  Scotch  estate  the  law 
would  be  the  same.  This  has  been  ruled  in  Scotland  in  the  cases  more 
than  once  referred  to,  and  affirmed  upon  appeal  here.  But  you  are  now 
advised  to  take  a  different  course,  when  the  same  question  arises  in  ano- 
ther part  of  the  United  Kingdom.  It  may  be  observed,  that,  in  referring 
to  those  Scotch  cases,  the  learned  Chief  Justice  says,  without  discussing 
them,  that  it  is  satisfactory  to  him,  that  the  form  of  the  proceeding  (a 
special  verdict)  was  such  as  to  carry  the  question  before  the  same  tribunal 
which  pronounced  those  decisions.  In  the  advice,  however,  which  has 
been  given  to  this  tribunal  by  the  same  learned  Judges,  I  do  not  find  that 
those  decisions  have  been  much  considered."  Birthwhistle  v.  Vardill,  9 
Bligh,  R.  71  to  86. 

1  Munro  V.  Saunders,  6  Bligh.  R.  468  ;  Rose  v.  Ross,  4  Wils.  &  Shaw, 
289  ;  Id.  App.  p.  33  to  p.  89.  See  1  Burge,  Comment,  on  Col.  and  For. 
Law,  P.  1,  ch.  3,  §  2,  p.  108,  109,  110. 

2  The  case  of  De  Conty,  1668,  cited  by  Lord  Brougham  in  Munro  v. 
Saunders,  6  Bligh,  R.  478,  and  in  Rose  v.  Ross,  4  Wils.  and  Shaw,  R. 
299.  The  same  case  is  reported  in  Merlin,  Quest,  de  Droit,  art.  Legiti- 
mation, ^  2,  note  (1),  p.  151,  4to.  edit.,  Paris,  1828,  who  corrects  the  er- 
ror into  which  Boullenois  had  fallen  in  stating  the  facts  of  the  same  case. 
See  also  1  Burge,  Comment,  on   Col.   and  For.  Law,  P.   1,  ch.    §  2, 


CH.  IV.]  CAPACITY  OF  PERSONS.  163 

that  the  law  of  the  pLace  of  birth  of  the  child,  and  not 
the  law  of  the  place  of  the  marriage  of  the  parents,  is 
to  decide,  whether  a  subsequent  marriage  will  legiti- 
mate the  child  or  not.^ 

§  93  f.  We  have  already  seen,  that  the  same  doctrine 
upon  these  very  points  is  maintained  by  Hertius,  by 
Bouhier,  and  by  Boullenois."     The  latter  puts  the  very 
case  of  a  child  born  in  England  in  concubinage,  and 
whose  parents  afterwards  become  residents  in  France, 
and  there   intermarry  without  being  naturalized,  and 
says,  that  the  child  is  not  legitimated  by  such  subse- 
quent marriage,  but  remains  illegitimate,  as  he  was  by 
the  law  of  the  country  of  his  birth.     The  converse  case 
of  a  child  born  in  France,  and  the  parents  subsequently 
intermarrying  in  England,  he  holds  equally  clear,  and 
that  thereby  the  child  will  become  legitimate.=^    Boulle- 
nois  has,  as  we  have  also  seen,  pushed  his  doctrine 
much  farther;  farther,  indeed,  than  seems  consistent 
with  any  just  principle,  especially  in  giving  a  retro- 
active effect  to  a  subsequent  naturalization  in  another 

country.^ 

§  93  u.  Merlin  supports  the  same  general  doctrine, 
holding,  that  it  is  impossible  to  consider  as  legitimate 
in  France  a  natural  child,  born  in  England  of  English 


p.  102,  106,  107.  May  there  not  be  room  for  a  distinction  in  such  a 
case,  as  to'the  state  of  the  party  or  property  in  the  country  of  his  birth, 
and  that  of  the  party  or  the  property  in  the  country  of  the  marriage,  each 
country  adhering  to  its  own  laws  in  regard  to  the  property  situate  there  ? 

1  But  see  the  elaborate  opinions  of  the  Scottish  Judges  on  the  same 
questions,  in  Rose  v.  Ross,  4  Wils.  &  Shaw,  App.  p.  33  to  p.  89.  The 
House  of  Lords  reversed  their  judgment. 

2  Ante,  ^  93  d,  ^  93  i. 

3  Ante,  ^  93  d,  ^  93  i ;  1  BouUenois,  Observ.  4,  p.  62,  63. 

4  Ibid.  ;  Merlin,  in  his  Quest,  de  Droit,  art.  Legitimalion,  ^  2,  n.  1, 
combats  this  doctrine  of  BouUenois. 


164  CONFLICT    OF   LAWS.  [CH.    IV. 

parents,  who  afterwards  intermarry  in  England.^  But, 
that  a  natural  child  born  in  France  of  French  parents, 
who  should  afterwards  remove  to  England,  and  there 
intermarry,  without  being  naturalized,  would  by  such 
subsequent  marriage  be  made  legitimate.^  In  each 
case  he  holds,  that  the  law  of  the  place  of  the  birth  of 
the  child  gives  the  rule,  as  to  legitimacy  by  a  subse- 
quent marriage. 

§  93  V.  Merlin  supposes,  that  Hertius  holds  a  differ- 
ent doctrine,  and  affirms,  that  the  law  of  the  place  of 
marriage  gives  the  rule  as  to  legitimacy,  and  not  that 
of  the  place  of  the  birth  of  the  child.  I  do  not  so  under- 
stand Hertius.  To  me  it  seems  clear,  that  Hertius  was 
only  contemplating  the  case  of  a  marriage  and  birth 
both  in  England.  In  Anglia  (says  he)  legitimaiioni  per 
siibseqiiens  matrimonium  locus  non  est.  Quwstio  est  igiiiir  ; 
An  films,  quem  pater  ante  legitinmni  conniibium  in  Anglia 
genuerat,  siiccedere  possit  patri  hide  naturali  in  bonis  extra 
Anglia  sitis?  Affirmatiim  hoc  in  Auditorio  Parisiensi? 
Reetius  negatiir,  nisi  lex  alteriiis  popidi  etiam  illegitimos  ad 
successionem  admittat ;  neque  enim  lex  ilia  Anglormn  pug- 
nat  cum  cequitate  naturali.^  It  is  highly  probable,  that 
Hertius  understood  the  case  referred  to,  as  Boullenois 
had,  by  mistake,  as  a  case,  where  the  child  was  born  in 
England  ;  whereas  he  was  born  in  France.^ 

§  94.  These  cases  may  suffice  in  relation  to  the  ques- 
tion of  legitimacy  or  illegitimacy.     We  may  now  pass 


1  Merlin,  Quest,  de  Droit,  art.  Legitimalion,  ^  i,  n.  \. 

2  Ibid.  ^  2,  n.  1,  2. 

3  Ante,  ^  39  s.     The  case  of  De  Conty,  in  1668. 

4  Hertii  Opera,  De  CoUis.  l^eg.  ^  4,  n.  15,  p.  129  ;  Id.  p.  183,  184,  edit. 
1716. 

5  Merlin,  Quest,  de  Droit,  ^  2,  n.  2,  p.  151,  4to.  edit.,  Paris,  1828; 
ante,  §  93  s,  note  2. 


CH.  IV.]         CAPACITY  OF  PERSONS.  165 

to  another  class  of  disabilities  imposed  by  foreign  laws, 
in  order  to  illustrate  the  difiiciilty  of  maintaining  the 
doctrine,  as  a  universal  rule,  obligatory  upon  all  coun- 
tries, under  all  circumstances,  that  the  capacity  or  inca- 
pacity of  a  person  is  to  be  governed  solely  by  the  laws 
of  his  birth  and  domicil ;  and  that  is  the  class  of  per- 
sons, whose  marriages  are  void  or  voidable  by  reason  of 
their  profession.  Thus,  by  the  law  of  England,  until 
after  the  reformation,  monks  and  nuns  were  deemed  in- 
capable of  contracting  marriage,'  (as  they  still  are  in 
many  parts  of  the  continent  of  Europe,)  and  their  con- 
tracts for  this  purpose  w^re  held  nullities.  The  mar- 
riages of  priests  are  also  in  some  countries  voidable  in 
law,  as  contrary  to  their  office,  at  any  time  during  their 
lives.^  And  to  this  very  day  in  Catholic  countries,  mar- 
riages are  prohibited  to  the  priesthood,  and  to  persons 
in  monastic  orders.  Yet  it  would  be  extremely  difficult 
to  maintain,  that  the  marriage  of  a  nun,  or  a  monk,  or 
a  priest,  celebrated  in  America,  where  no  such  prohibi- 
tion exists,  ought,  causa  profcssionis,  to  be  held  a  mere 
nullity  on  account  of  such  foreign  prohibitions,  especial- 
ly where  the  other  party  is  at  the  time  of  the  marriage 
domiciled  here,  and  as  such  is  entitled  to  the  protection 
of  our  laws. 

§  95.  By  the  laws  of  some  countries  the  subjects 
thereof  are  prohibited  from  intermarrying  with  foreign- 
ers, or  with  persons  of  another  religious  sect  -,  and  some 
civilians  have  held,  that  such  laws  are  of  universal  ob- 
ligation, and  accompany  the  person  everywhere.^     But 


1  2  Inst.  686,  687  ;  Com.  Dig.    Baron   and  Feme,   B.  2  ;  1  Woodes. 
Lect.  16,  p.  422. 

2  See  Paul  Voet,  De  Stalut.  ^  5,  ch.  2,  n.  1,  p.  178,  179,  edit.   1661  ; 
Vattel,  B.  2,  ch.  8,  ^  115. 


166  CONFLICT    OF   LAWS.  [CH.  IV. 

it  can  hardly  be  supposed,  that  any  other  nation  would 
suffer  a  marriage  celebrated  in  its  own  dominions,  ac- 
cording to  its  own  laws,  between  such  persons,  and  es- 
pecially where  one  of  them  was  a  citizen  or  subject 
thereof,  to  be  deemed  a  nullity  in  its  own  courts.  Such 
a  narrow  prohibition  would  justly  be  deemed  odious, 
and  be  rejected. 

§  96.  Another  case  may  be  put  of  even  a  more  strik- 
ing character.  Suppose  a  person  to  be  a  slave  in  his  own 
country,  having  no  personal  capacity  to  contract  there, 
is  he,  upon  his  removal  to  a  foreign  country,  where 
slavery  is  not  tolerated,  to  be-  still  deemed  a  slave  ?  If 
so,  thefi  a  Greek  or  Asiatic,  held  in  slavery  in  Turkey, 
would,  upon  his  arrival  in  England,  or  in  Massachusetts, 
be  deemed  a  slave,  and  be  there  subject  to  be  treated  as 
mere  property,  and  be  under  the  uncontrollable  des- 
potic power  of  his  master.  The  same  rule  would  exist 
as  to  Africans  and  others,  held  in  slavery  in  foreign 
countries.  But  we  know,  that  no  such  general  effect 
has  in  practice  ever  been  attributed  to  the  state  of 
slavery.  There  is  a  uniformity  of  opinion  among  fo- 
reign jurists,  and  foreign  tribunals,  in  giving  no  effect 
to  the  state  of  slavery  of  a  party,  whatever  it  might 
have  been  in  the  country  of  his  birth,  or  of  that,  in  which 
he  had  been  previously  domiciled,  unless  it  is  also  re- 
cognized by  the  laws  of  the  country  of  his  actual  domi- 
cil,  and  where  he  is  found,  and  it  is  sought  to  be 
enforced.  Christinreus  states  this  as  a  clear  rule, 
affirmed  by  judicial  decisions,  JPropter  lihertatis  im'sona- 
rmn  imim  Jiic  per  aliquot  scccida  continue  olservatiim} 
Groenewegen,  speaking  of  slavery,  says ;  Ejiisqiie  nomen 


1  Christinaeus,  Vol.  4,  Decis.  80,  p.  114,  115,n.  4  ;  1  Burge,  Comment, 
on  Col.  and  For.  Law,  ch.  10,  p.  739. 


CH.  IV.]  CAPACITY  OF  PERSONS.  167 

hodie  apiid  nos  exolcvit.  Adeo  qmde7n,  lit  servi,  qui  aliunde 
hue  addueimtur,  siimd  ac  imperii  nostri  fines  intrdnint,  in- 
vitis  ipsis  dominis,  ad  lihertatem  prochmare  possint.  Id, 
quod  et  aliorum  Cliristianorum  gentium  morihus  receptum 
est}  In  Scotland  the  like  doctrine  has  been  solemnly 
adjudged.^  The  tribunals  of  France  have  adopted  the 
same  rule,  even  in  relation  to  slaves,  coming  from  and 
belonging  to  their  own  colonies.  This  is  also  the  un- 
disputed law  of  England.^  It  has  been  solemnly 
decided,  that  the  law  of  England  abhors,  and  will  not 
endure  the  existence  of  slavery  within  the  nation  ;  and 
consequently,  as  soon  as  a  slave  lands,  in  England,  he 
becomes  ipso  facto  a  freeman  ;  and  discharged  from  the 
state  of  servitude."*  Independent  of  the  provisions  of 
the  Constitution  of  the  United  States,  for  the  protection 
of  the  rights  of  masters  in  regard  to  domestic  fugitive 
slaves,  there  is  no  doubt,  that  the  same  principle  per- 
vades the  common  law  of  the  non  slave-holding  states 
in  America ;  that  is  to  say,  foreign  slaves  would  no 
longer  be  deemed  such  after  their  removal  thither.^ 


^  Groenewegen,  ad  Instit.  Lib.  1,  lit.  8,  n.  3,  p.  5  ;  cited  also  in  1  Burge, 
Comment,  on  Col.  and  For.  Law,  ch.  10,  p.  739.  Groenewegen  cites 
many  authorities  in  support  of  his  opinion. 

2  Knight  V.  Wedderbern,  1778,  20  Howell,  State  Trials,  1  to  15,  note. 

3  See  cases  cited  20  Howell,  State  Trials,  12, 13,  14,  note  ;  and  Causes 
C616bres,  vol.  13,  p.  492,  edit.  1747;  1  Burge,  Comment,  on  Col.  and  For. 
Law,  ch.  10,  p.  739,  740, 

^  Somerset's  Case,  Lofft,  R.  1  ;  S.  C.  11  State  Trials,  (Hargrave  edit.) 
.340;  20  Howell,  State  Trials,  1  to  79;  Co.  Lit.  79;  Harg.  note,  44  ; 
1  Black.  Comm.  424,  425,  Christian's  note,  and  Coleridge's  note;  Forbes 
V.  Cochrane,  2  Barn.  &  Cres.  448  ;  The  Amedie,  1  Acton,  R.  240  ;  S.  C. 
1  Dodson,  R.  84  ;  Id.  91,  95  ;  The  St.  Louis,  2  Dodson,  R.  210  ;  The 
Slave  Grace,  2  Hagg.  Adm.  R.  94,  104,  105,  106, 107, 109,  110,  111,  118  ; 
1  Burge,  Comment,  on  Col.  and  For.  Law,  P.   1,  ch.  10,  p.  734  to  p.  752. 

5  See  the  opinion  of  the  Court  delivered  by  Mr.  Justice  Porter,  in  Saul 
V.  His  Creditors,  17  Martin,  R.  598  ;  In  re  Francisco,  9  Amer.  Jurist,  490  ; 


168  CONFLICT    OF    LAWS.  [CH.  IV. 

§  96  a.  It  is  quite  a  different  question,  how  far  rights 
acquired,  and  wrongs  done  to  slave  property,  or  con- 


Butler  V.  Hooper,  1  Wash.  C.  C.  R.  499  ;  Ex  parte  Simmons,  4  Wash.  C. 
C.  R.  390.     See  also  Butler  y.  Delaplaine,  7  Serg.  &  Rawle,  R.  378  ;  Com- 
monwealth i;.  Holloway,  6  Binn.  R.  213  ;  S.  C.  2  Serg.  &  Rawle,  R.  305; 
Lumsford  v.  Coquillon,  14  Martin,  R.  408  ;  Louis u.  Cabarrus,  7  Louis.  R. 
170,  172  ;   1  Burge,  Coram,  on  Col.  and  For.  Law,  P.  1,  ch.  10,  p.  744  to 
749;  Prigg  iJ,  Coram,  of  Penn.  16  Peters,  R.  541,  611,  612.     Intherecent 
case  of  Coraraonwealth  v.  Aves,  1836,  [18  Pick.  R.  193,]  before  Mr.  Chief 
Justice  Shaw,  in  Massachusetts,  it  was  expressly  held,  that  a  slave  brought 
into  Massachusetts  voluntarily  by  his  master,    from  a  slave  state  of  the 
United  Stales,  was  free  here,  and  could  not  be  recovered  or  carried  back  as 
a  slave.     Upon  that  occasion  the  learned  Judge  said  :  "  The  question  now 
before  the  court  arises  upon  a  return  to  a  Habeas  Corpus,  originally  is- 
sued in  vacation,  by  Mr.  Justice  Wilde,  for  the  purpose  of  bringing  up  the 
person  of  a  colored  child,  naraed  Med,  and  instituting  a  legal  inquiry  into 
the  fact  of  her  detention,  and  the  cause,  for  which  she  was  detained.     By 
the  provisions  of  the  revised   code,  the  practice   upon   habeas  corpus 
is  somewhat  altered.     In  case  the  party  coraplaining,  or  in  behalf  of  whom 
complaint  is  made,  on  the  ground  of  unlawful  iraprisonraent,  is  not  in  the 
custody  of  an  officer,  as  of  a  sheriff  or  deputy,  or  corresponding  officer  of 
the  United  States,  the  writ  is  directed  to  the  sheriff,  requiring  him  or  his 
deputy  to  take  the  body  of  the  person  thus  coraplaining,  or  in  behalf  of 
whom  coraplaint  is  thus  made,  and   have  him  before  the  court  or  magis- 
trate issuing  the  writ,  and  to  summon  the  party  alleged  to  have  or  claim 
the  custody  of  such  person,  to  appear  at  the  same  lime,  and  show  the  cause 
of  the  detention.     The  person  thus  summoned  is  to  make  a  statement  un- 
der oath,  setting  forth  all  the  facts  fully  and  particularly  ;  and  in  case  he 
claintis  the  custody  of  such  parly,  the  grounds  of  such  claim  must  be  fully 
set  forth.     This  statement  is  in  the  nature  of  a  return  to  the  writ,  as  made 
under  the  former  practice,  and  will  usually  present  the  material  facts,  upon 
which  the  questions  arise.     Such  return,  however,  is  not  conclusive  of  the 
facts  stated  in  it ;  but  the  court  is  to  proceed  and  inquire  into  all  the  al- 
leged causes  of  detention,  and  decide  upon  them  in  a  summary  manner. 
But  the  court  may,  if  the  occasion  require  it,  adjourn  the  examination,  and 
in  the  mean  time  bail  the  parly,  or  commit  him  to  a  general  or  special  cus- 
tody, as  the  age,  health,  sex,  and  other  circumstances  of  the  case  may  re 
quire.     It  is  further  provided,  that,  when  the  writ  is  issued  by  one  Judge 
of  the  court  in  vacation,  and  in  the  mean  time,  before  a  final  decision,  the 
court  shall  meet  in  the  same  county,  the  proceedings  may  be  adjourned 
into  the  court,  and  there  be  conducted  to  a  final  issue,  in  the  same  manner 
as  if  they  had  been  originally  commenced  by  a  writ  issued  from  the  court. 
I  have  staled  these  provisions  the  more  minutely,  because  there  have  been 


CH.  IV.]  CAPACITY  OF  PERSONS.  169 

tracts  made  respecting  such  property,  in  countries  where 
slavery  is  permitted,  may  be  allowed  to  be  redressed,  or 


as  yet  but  few  proceedings  under  the  revised  statutes,  and  the  practice  is 
yet  to  be  established.  Upon  the  return  of  this  writ  before  Mr.  Justice 
Wilde,  a  statement  was  made  by  Mr.  Aves,  the  respondent  :  the  case  was 
then  postponed.  It  has  since  been  fully  and  very  ably  argued  before  all 
the  Judges,  and  is  now  transferred  to,  and  entered  in  court,  and  stands 
here  for  judgment,  in  the  same  manner  as  if  the  writ  had  been  originally 
returnable  in  court.  The  return  of  Mr.  Aves  states,  that  he  has  the  body 
of  the  colored  child  described  in  his  custody,  and  produces  her.  It  further 
states,  that  Samuel  Slater,  a  merchant,  citizen  and  resident  in  the  city  of 
New  Orleans,  and  State  of  Louisiana,  purchased  the  child  with  her  mother 
in  1833,  the  mother  and  child  being  then  and  long  before  slaves,  by  the 
laws  of  Louisiana  ;  that  they  continued  to  be  his  property,  in  his  service 
at  New  Orleans,  till  about  the  first  of  May  last,  when  Mary  Slater,  his 
wife,  the  daughter  of  Mr.  Aves,  left  New  Orleans  for  Boston,  for  the  pur- 
pose of  visiting  her  father,  intending  to  return  to  New  Orleans  after  an  ab- 
sence of  four  or  five  months  ;  that  the  mother  of  the  child  remained  at  New 
Orleans  in  a  state  of  slavery,  but  that  Mrs.  Slater  brought  the  child  with 
her  from  New  Orleans  to  Boston,  having  the  child  in  her  custody,  as  the 
agent  and  representative  of  her  husband,  whose  slave  the  child  was,  by 
the  laws  of  Louisiana.  When  the  child  was  brought  thence,  the  object, 
intent,  and  purpose  of  the  said  Mary  Slater  being  to  have  the  said  child 
accompany  her,  and  remain  in  her  custody  and  under  her  care  during  her 
temporary  absence  fronn  New  Orleans,  and  that  the  said  child  should  re- 
turn with  her  to  New  Orleans,  the  domicil  of  herself  and  husband  ;  that 
the  said  child  was  confided  to  the  custody  and  care  of  said  Aves  by  Mrs. 
Slater,  during  her  temporary  absence  in  the  country  for  her  health.  The 
respondent  concludes  by  stating,  that  he  has  exercised  no  other  restraint 
over  the  liberty  of  this  child,  than  such  as  was  necessary  to  the  health  and 
safety  of  the  child.  Notice  having  been  given  to  Mr.  and  Mrs.  Slater,  an 
appearance  has  been  entered  for  them,  and  in  this  state  of  the  case  and  of 
the  parties,  the  cause  has  been  heard.  Some  evidence  was  given  at  the  for- 
mer hearing,  but  it  does  not  materially  vary  the  facts  stated  in  the  return. 
The  fact  testified,  which  was  considered  most  material,  was  the  declared 
intent  of  Mrs.  Slater  to  take  the  child  back  to  New  Orleans.  But  as  that 
intent  is  distinctly  avowed  in  the  return  —  that  is,  to  take  the  child  back 
to  New  Orleans,  if  it  could  be  lawfully  done,  it  does  not  essentially  change 
the  case  made  by  the  return.  This  return  is  now  to  he  considered  in  the 
same  aspect,  as  if  made  by  Mr.  Slater.  It  is  made,  in  fact,  by  Mr.  Aves, 
claiming  the  custody  of  the  slave  in  right  of  Mr.  Slater,  and  that  claim  is 
sanctioned  by  Mr.  Slater,  who  appears  by  his  attorney,  to  maintain  and 
enforce  it.  lie  claims  to  have  the  child  as  master,  and  carry  her  back  to 
CONFL.  15 


170  CONFLICT    OF   LAWS.  [CH.  IV. 

recognized  in  the  judicial  tribunals  of  governments, 
which  prohibit  slavery.'     And  it  is  also  a  very  different 


New  Orleans,  and,  whether  the  claim  has  been  made  in  terms  or  not,  to 
hold  and  return  her  as  a  slave,  that  intent  is  manifest,  and  the  argument 
has  very  properly  placed  the  claim  upon  that  ground.  The  case  presents 
an  extremely  interesting  question,  not  so  much  on  account  of  any  doubt  or 
difficulty  attending  it,  as  on  account  of  its  important  consequences  to  those 
who  may  be  affected  by  it,  either  as  masters  or  slaves.  The  precise  ques- 
tion presented  by  the  claim  of  the  respondent  is,  whether  a  citizen  of  any 
one  of  the  United  States,  where  negro  slavery  is  established  by  law,  com- 
ing into  this  State,  for  any  temporary  purpose  of  business  or  pleasure, 
staying  some  time,  but  not  acquiring  a  domicil  here,  who  brings  a  slave 
with  him  as  a  personal  attendant,  may  restrain  such  slave  of  his  liberty 
during  his  continuance  here,  and  convey  him  out  of  this  state  on  his  return, 
against  his  consent.  It  is  not  contended,  that  a  master  can  exercise  here 
any  other  of  the  rights  of  a  slave-owner,  than  such  as  may  be  necessary  to 
retain  the  custody  of  the  slave  during  his  residence,  and  to  remove  him  on 
his  return.  Until  this  discussion,  I  had  supposed,  that  there  had  been  ad- 
judged cases  on  this  subject  in  this  Commonwealth  ;  and  it  is  believed  to 
have  been  a  prevalent  opinion  among  lawyers,  that  if  a  slave  is  brought 
voluntarily  and  unnecessarily  within  the  limits  of  this  State,  he  becomes 
free,  if  he  chooses  to  avail  himself  of  the  provisions  of  our  laws;  not  so 
much,  because  his  coming  within  our  territorial  limits,  breathing  our  air, 
or  treading  on  our  soil,  works  any  alteration  in  his  status,  or  condition,  as 
settled  by  the  law  of  his  domicil,  as  because  by  the  operation  of  our  laws, 
there  is  no  authority  on  the  part  of  the  master,  either  to  restrain  the  slave 
of  his  liberty,  whilst  here,  or  forcibly  to  take  him  into  custody  in  order  to 
his  removal.  There  seems,  however,  to  be  no  decided  case  on  the  subject 
reported.  It  is  now  to  be  considered  as  an  established  rule,  that  by  the 
constitution  and  laws  of  this  Commonwealth,  before  the  adoption  of  the 
Constitution  of  the  United  States,  in  1789,  slavery  was  abolished,  as  being 
contrary  to  the  principles  of  justice  and  of  nature,  and  repugnant  to  the 
provisions  of  the  Declaration  of  Rights,  which  is  a  component  part  of  the 
constitution  of  the  State.  It  is  not  easy,  without  more  time  for  historical 
research,  than  I  now  have,  to  show  the  course  of  slavery  in  Massachusetts. 
By  a  very  early  Colonial  Ordinance  (1641)  it  was  ordered,  that  there 
should  be  no  bond  slavery,  villanage,  or  captivity  amongst  us,  with  the 
exception  of  lawful  captives  taken  in  just  wars,  or  those  judicially  sen- 

1  Madrazo  v.  Willes,  3  B.  &  Aid.  353  ;  Forbes  v.  Cochrane,  2  B.  & 
Cres.  448  ;  The  St.  Louis,  2  Dodson,  R.  210 ;  The  Antelope,  10  Whea- 
ton,  R.  66  ;  Wharton,  Digest,  Servants  and  Slaves,  A.  D.  See  1  Burge, 
Coram,  on  Col.  and  For.  Law,  P.  1,  ch.  10,  p.  735  to  752. 


CH.  IV.]  CAPACITY    OF   PERSONS.  171 

question,  how  far  the  original  state  of  slavery  might 
reattach  upon  the  party,  if  he  should  return  to  the  coun- 


tenced  to  servitude,  as  a  punishment  for  crime.  And  by  an  act  a  few  years 
after,  (1646,)  manifestly  alluding  to  some  transaction  then  recent,  the  Gene- 
ral Court,  conceiving  themselves  bound  to  bear  witness  against  the  heinous 
and  crying  sin  of  man-stealing,  &c.,  ordered,  that  certain  negroes  be  sent 
back  to  their  native  country  (Guinea)  at  the  charge  of  the  country,  with 
a  letter  from  the  Governor  expressive  of  the  indignation  of  the  Court  there- 
abouts. See  Ancient  Charters,  &c.  52,  ch.  12,  §  2,  3.  But  notwith- 
standing these  strong  expressions  in  the  acts  of  the  Colonial  Government, 
slavery  to  a  certain  extent  seems  to  have  crept  in  ;  not  probably  by  force 
of  any  law,  for  none  such  is  found  or  known  to  exist  ;  but  rather,  it  may 
be  presumed,  from  that  universal  custom,  prevailing  through  the  European 
colonies,  in  the  West  Indies,  and  on  the  continent  of  America,  and  which 
was  fostered  and  encouraged  by  the  commercial  policy  of  the  parent  state. 
That  it  was  so  established,  is  shortly  shown  by  this,  that  by  several  provincial 
acts,  passed  at  various  times,  in  theearly  part  of  the  last  century,  slavery  was 
recognized  as  existing  in  fact,  and  various  regulations  were  prescribed  in 
reference  to  it.  The  act  passed  June,  1703,  imposed  certain  restrictions 
upon  manumission,  and  subjected  the  master  to  the  relief  and  support  of 
the  slaves,  notwithstanding  such  manumission,  if  the  regulations  were  not 
complied  with.  The  act  of  October,  1705.  levied  a  duty  and  imposed  va- 
rious restrictions  upon  the  importation  of  negroes,  and  allowed  a  drawback 
upon  any  negro,  thus  imported,  and  for  whom  the  duty  had  been  paid,  if 
exported  within  the  space  of  twelve  months,  and  bona  fide  sold  in  any  other 
plantation.  How,  or  by  what  act  particularly,  slavery  was  abolished  in 
Massachusetts,  whether  by  the  adoption  of  an  opinion  in  Somerset's  case, 
as  a  declaration  and  modification  of  the  common  law,  or  by  the  Declara- 
tion of  Independence,  or  by  the  Constitution  of  1780,  it  is  not  now  very 
easy  to  determine,  and  it  is  rather  a  matter  of  curiosity,  than  of  utility  ;  it 
being  agreed  on  all  hands,  that,  if  not  abolished  before,  it  was  so  by  the 
Declaration  of  Rights.  In  the  case  of  Winchendon  v.  Hatfield,  (4  Mass. 
R.  123,)  which  was  a  case  between  two  towns  respecting  the  support  of  a 
pauper.  Chief  Justice  Parsons,  in  giving  the  opinion  of  the  Court,  states, 
that  at  the  first  action,  which  came  before  the  Court  after  the  establish- 
ment of  the  constitution,  the  judges  declared,  that,  by  virtue  of  the  Decla- 
ration of  Rights,  slavery  in  this  State  was  no  more.  And  he  mentions 
another  case,  Littleton  v.  Tuttle,  (4  Mass.  R.  128,  note,)  in  which  it  was 
stated,  as  the  unanimous  opinion  of  the  Court,  that  a  negro  born  within 
the  State,  before  the  constitution,  was  born  free,  though  born  of  a  female 
slave.  The  Chief  Justice,  however,  states,  that  the  general  practice  and 
common  usage  have  been  opposed  to  this  opinion.  It  has  recently  been 
stated  as  a  fact,  that  there  were  judicial  decisions  in  this  State  prior  to  the 


172  CONFLICT    OF   LAWS.  [CH.   IV. 

tiy,  by  whose  laws  he  was  declared  to  he,  and  was  held 
as  a  slave.     Lord  Stowell,  in  a  case  of  this  sort,  held, 


adoption  of  the  present  constitution,  holding,  that  negroes,  born  here  of 
slave  parents,  were  free.  A  fact  is  stated  in  the  above  opinion  of  Chief 
Justice  Parsons,  which  may  account  for  this  suggestion.  He  states,  that 
several  negroes,  born  in  this  country,  of  imported  slaves,  had  demanded 
their  freedom  of  their  masters  by  suits  of  law,  and  obtained  it  by  a  judg- 
ment of  court.  The  defence  of  the  master,  he  says,  was  faintly  made  ;  for 
such  was  the  temper  of  the  times,  that  a  restless,  discontented  slave,  was 
worth  little  ;  and  when  his  fieedom  was  obtained  in  a  course  of  legal  pro- 
ceedings, his  master  was  not  holden  for  his  support,  if  he  became  poor. 
It  is  very  probable,  therefore,  that  this  surmise  is  correct,  and  that  records 
of  judgments  to  this  effect  may  be  found  ;  but  they  would  throw  very  lit- 
tle light  on  the  subject.  Without  pursuing  this  inquiry  farther,  it  is  suffi- 
cient for  the  purposes  of  the  case  before  us,  that  by  the  constitution 
adopted  in  1780,  slavery  was  abolished  in  Massachusetts,  upon  the  ground, 
that  it  is  contrary  to  natural  right  and  the  plain  principles  of  justice.  The 
terms  of  the  first  article  of  the  Declaration  of  Rights  are  plain  and  expli- 
cit. '  All  men  are  born  free  and  equal,  and  have  certain  natural,  essen- 
tial, and  unalienable  rights,  among  which  are  the  right  of  enjoying  and  de- 
fending their  lives  and  liberties,  that  of  acquiring,  possessing,  and  protect- 
ing property.'  It  would  hp  rlifFif.nlt  lo  sp.lfirit  words  more  precisely  adapted 
to  the  abolition  of  negro  slavery.  According  to  the  lavps  prevailing  in  all 
the  States,  where  slavery  is  upheld,  the  child  of  a  slave  is  not  deemed  to 
be  born  free,  a  slave  has  no  right  to  enjoy  and  defend  his  own  liberty,  or 
to  acquire,  possess,  or  protect  property.  That  the  description  was  broad 
enough  in  its  terms  to  embrace  negroes,  and  that  it  was  intended  by  the 
framers  of  the  constitution  to  embrace  them,  is  proved  by  the  earliest  con- 
temporaneous construction,  by  an  unbroken  series  of  judicial  decisions,  and 
by  a  uniform  practice  from  the  adoption  of  the  constitution  to  the  present 
time.  The  whole  tenor  of  our  policy,  of  our  legislation  and  jurisprudence 
from  that  time  to  the  present,  has  been  consistent  with  this  construction, 
and  with  no  other.  Such  being  the  general  rule  of  law,  it  becomes  neces- 
sary to  inquire  how  far  it  is  modified  or  controlled  in  its  operation  ;  either, 
I.  By  the  law  of  other  nations  and  states,  as  admitted  by  the  comity  of 
nations  to  have  a  limited  operation  within  a  particular  State  ;  or,  2.  By 
the  constitution  and  laws  of  the  United  States.  In  considering  the  first, 
we  may  assume,  that  the  law  of  this  State  is  analogous  to  the  law  of  Eng- 
land, in  this  respect ;  that,  while  slavery  is  considered  as  unlawful  and  inad- 
missible in  both,  and  this  because  contrary  to  natural  right,  and  to  laws 
designed  for  the  security  of  personal  liberty,  yet  in  both,  the  existence  of 
slavery  in  other  countries  is  recognized,  and  the  claims  of  foreigners,  grow- 
ing out  of  that  condition,  are  to  a  certain  extent  respected.     Almost  the 


CH.  IV.]  CAPACITY   OF   PERSONS.  173 

that  upon  such  a  return  of  the  slave  to  his  original  do- 
micile the  state  of  slavery  would  reattach  upon  him. 


only  reason  assigned  by  Lord  Mansfield  in  Somerset's  case  was,  that 
slavery  is  of  such  a  nature,  that  it  is  incapable  of  being  introduced  on  any 
reasons  moral  or  political,  but  only  by  positive  law  ;  and,  it  is  so  odious, 
that  nothing  can  be  suffered  to  support  it  but  positive  law.  The  same 
doctrine  is  clearly  stated  in  the  full  and  able  opinion  of  Marshall,  C.  J.,  in 
the  case  of  the  Antelope,  10  Wheat.  R.  120.  He  is  speaking  of  the  slave 
trade,  but  the  remark  itself  shows,  that  it  applies  to  the  state  of  slavery. 
*  That  it  is  contrary  to  the  law  of  nature  will  scarcely  be  denied.  That 
every  man  has  a  natural  right  to  the  fruits  of  his  own  labor,  is  generally 
admitted,  and  that  no  other  person  can  rightfully  deprive  him  of  those 
fruiis,  and  appropriate  them  against  his  will,  seems  to  be  the  necessary  re- 
sult of  the  admission  '  But  although  slavery  and  the  slave  trade  are 
deemed  contrary  to  natural  right,  yet  it  is  settled  by  the  judicial  decisions 
of  this  country  and  of  England,  that  it  is  not  contrary  to  the  law  of  nations. 
It  has  been  too  long  and  too  extensively  admitted,  by  the  laws  of  all  mo- 
dern civilized  nations,  and  more  explicitly  by  those,  who  have  had  foreign 
colonies,  to  warrant  any  one  independent  community  to  say,  that  it  is  op- 
posed to  the  laws  of  nations.  The  authorities  are  cited  in  the  case  of  the 
Antelope,  and  that  case  is  itself  an  authority  directly  in  point.  The  con- 
sequence is,  that  each  independent  community,  in  its  intercourse  with 
every  other,  is  bound  to  act  on  the  principle,  that  such  other  country  has  a 
full  and  perfect  authority  to  make  such  laws  for  the  government  of  its  own 
subjects,  as  its  own  judgment  shall  dictate,  and  its  own  conscience  ap- 
prove, provided  the  same  are  consistent  with  the  law  of  nations;  and  no 
independent  community  has  any  right  to  interfere  with  the  acts  or  conduct 
of  another  Slate,  within  the  territories  of  such  Stale,  or  on  the  high  seas, 
which  each  has  an  equal  right  to  use  and  occupy  ;  and  that  each  sovereign 
Slate  governed  by  its  own  laws,  although  competent  and  well  authorized 
to  make  such  laws,  as  it  may  think  most  expedient,  to  the  extent  of  its 
own  territorial  limits,  and  for  the  government  of  its  own  subjects,  yet 
beyond  those  limits,  and  over  those  who  are  not  its  own  subjects,  has  no 
authoriiy  to  enforce  her  own  laws,  or  treat  the  laws  of  other  Stales  as 
void,  although  contrary  to  its  own  views  of  morality.  This  view  seems 
consistent  with  most  of  the  leading  cases  on  the  subject.  Somerset's  case, 
20  Howell,  Stale  Trials,  1,  as  already  cited,  decides  that  slavery,  being 
odious  and  against  natural  right,  cannot  exist  except  by  force  of  positive 
law.  But  it  clearly  admits,  that  it  may  exist  by  force  of  positive  law. 
And  it  may  be  remarked,  that  by  positive  law,  in  this  connection,  may  be 
as  well  understood,  customary  law,  as  the  enactment  of  a  statute;  and 
the  word  is  used  to  designate  rules  established  by  tacit  acquit'scence,  or 
by  the  legislative  act  of  any  Slate,  and  which  derive  their  force  and  author- 
15* 


174  CONFLICT    OP   LAWS.  [CH.  IV. 

On  that  occasion  he  said ;  "  The  entire  change  of  the 
legal  character  of  individuals,  produced  by  the  change 


ity  from  acquiescence  or  enactment,  and  not  because  they  are  the  dictates 
of  natural  justice,  and  as  such  of  universal  obligation.  The  Louis, 
2  Dodson,  R.  238.  This  was  an  elaborate  opinion  of  Sir  William  Scott. 
It  was  the  case  of  a  French  vessel  seized  by  an  English  vessel  in  time 
of  peace,  whilst  engaged  in  the  slave  trade.  It  proceeded  upon  the 
ground,  that  a  right  of  visitation,  by  the  vessels  of  one  nation,  of  the  ves- 
sels of  another,  could  only  be  exercised  in  time  of  war,  or  against  pirates, 
and  that  the  slave  trade  was  not  piracy  by  the  laws  of  nations,  except 
against  those,  by  whose  government  it  has  been  so  declared  by  law  or 
by  treaty.  And  the  vessel  was  delivered  up.  The  Amedie,  1  Acton,  R. 
240.  The  judgment  of  Sir  William  Grant  in  this  case,  upon  the  point,  on 
which  the  case  was  decided,  that  of  the  burden  of  proof,  has  been 
doubted.  But  upon  the  point  now  under  discussion,  he  says,  but  we  do 
not  lay  down  as  a  general  principle,  that  this  is  a  trade,  which  cannot, 
abstractedly  speaking,  be  said  to  have  a  legitimate  existence.  I  say, 
abstractedly  speaking,  because  we  cannot  legislate  for  other  countries ; 
nor  has  this  country  a  right  to  control  any  foreign  legislature,  that  may 
give  permission  to  its  subjects,  to  prosecute  this  trade.  He,  however, 
held,  in  consequence  of  the  principles  declared  by  the  British  government, 
that  he  was  bound  to  hold  prima  facie,  that  the  traffic  was  unlawful,  and 
threw  on  the  claimant  the  burden  of  proof,  that  the  traffic  was  permitted 
by  the  law  of  his  own  country.  The  Diana,  1  Dodson,  R.  95.  This  case 
strongly  corroborates  the  general  principle,  that,  though  the  slave  trade  is 
contrary  to  the  principles  of  justice  and  humanity,  it  cannot  with  truth  be 
said,  that  it  is  contrary  to  the  laws  of  all  civilized  nations;  and  that  courts 
will  respect  the  property  of  persons  engaged  in  it,  under  the  sanction  of  the 
laws  of  their  own  country.  Two  cases  are  cited  from  the  decisions  of  courts 
of  common  law,  which  throw  much  light  upon  the  subject.  Madrazo  v. 
Willis,  3  B.  &  Aid.  353.  It  was  an  action  brought  by  a  Spaniard  against 
a  British  subject,  who  had  unlawfully,  and  without  justifiable  cause,  cap- 
tured a  ship  with  three  hundred  slaves  on  board.  The  only  question  was, 
the  amount  of  damages.  Abbott,  C.  J.,  who  tried  the  cause,  in  reference 
to  the  very  strong  language  of  the  acts  of  Parliament,  declaring  the  traffic 
in  slaves  a  violation  of  right,  and  contrary  to  the  first  principles  of  justice 
and  humanity,  doubted,  whether  the  owner  could  recover  damages,  in  an 
English  court  of  justice,  for  the  value  of  the  slaves  as  property,  and 
directed  the  ship  and  the  slaves  to  be  separately  valued.  On  further  con- 
sideration he  and  the  whole  court  were  of  opinion,  that  the  .plaintiff  was 
entitled  to  recover  for  the  value  of  the  slaves.  That  opinion  went  upon 
the  ground,  that  the  traffic  in  slaves,  however  wrong  in  itself,  if  prose- 
cuted by  a  Spaniard  between  Spain  and  the  coast  of  Africa,  and  if  per- 


CH.  IV.]  CAPACITY  OF  PERSONS.  175 

of  local  situation,  is  far  from  being  a  novelty  in  the 
law.     A  residence  in  a  new  country  often  introduces  a 


mitted  by  the  laws  of  Spain,  and  not  restrained  by  treaty,  could  not  be 
lawfully  interrupted  by  a  British  subject,  on  the  high  seas,  the  common 
highway  of  nations.  And  ]\Ir.  Justice  Bayley,  in  his  opinion,  after  stating 
the  general  rule,  that  a  foreigner  is  entitled,  in  a  British  court  of  justice, 
to  compensation  for  a  wrongful  act,  added,  that,  although  the  language 
used  by  the  statutes  was  very  strong,  yet  it  could  only  apply  to  British 
subjects.  It  is  true,  he  further  says,  that  if  this  were  a  trade  contrary  to 
the  laws  of  nations,  a  foreigner  could  not  maintain  this  action.  And 
Best,  J.,  spoke  strongly  to  the  same  effect,  adding,  that  the  statutes  speak 
in  just  terms  of  indignation  of  the  horrible  traffic  in  human  beings,  but 
they  speak  only  in  the  name  of  the  British  nation.  If  a  ship  be  acting 
contrary  to  the  general  law  of  nations,  she  is  thereby  subject  to  confisca- 
tion;  but  it  is  impossible  to  say,  that  the  slave  trade  is  contrary  to  what 
may  be  called  the  common  law  of  nations.  Forbes  v.  Cochrane,  2  Barn.  & 
Cresw.  448 ;  Dowl.  &  Ryl.  679.  This  case  has  been  supposed  to  conflict 
with  the  one  last  cited  ;  but  I  apprehend,  in  considering  the  principles,  upon 
which  they  were  decided,  they  will  be  found  to  be  perfectly  reconcilable. 
The  plaintiff,  a  British  subject,  domiciled  in  East  Florida,  where  slavery 
Was  established  by  law,  was  the  owner  of  a  plantation,  and  of  certain 
slaves,  who  escaped  thence  and  got  on  board  a  British  ship  of  war  on  the 
high  seas.  It  was  held,  that  he  could  not  maintain  an  action  against  the 
master  of  the  ship  for  harboring  the  slaves  after  notice  and  demand  of 
them.  Some  of  the  opinions  given  in  this  case  are  extremely  instructive 
and  applicable  to  the  present.  Holroyd,  J.,  in  giving  his  opinion,  said, 
that  the  plaintiff  could  not  found  his  claim  to  the  slaves  upon  any  general 
right,  because  by  the  English  law  such  a  right  cannot  be  considered  as 
warranted  by  the  general  law  of  nature  ;  that  if  the  plaintiff  could  claim 
at  all,  it  must  be  in  virtue  of  some  right,  which  he  had  acquired  by  the 
law  of  the  country,  where  he  was  domiciled ;  that  when  such  rights  are 
recognized  by  law,  they  must  be  considered  as  founded  not  upon  a  law  of 
nature,  but  upon  the  particular  law  of  that  country,  and  must  be  coexten- 
sive with  the  territories  of  that  State  ;  that  if  such  right  were  violated  by 
a  British  subject,  within  such  territory,  the  party  grieved  would  be  entitled 
to  a  remedy  ;  but  that  the  law  of  slavery  is  a  law  in  invitum  ;  and  when  a 
party  gets  out  of  the  territory,  where  it  prevails,  and  under  the  protection 
of  another  power,  without  any  wrongful  act  done  by  the  party  giving  that 
protection,  the  right  of  the  master,  which  is  founded  on  the  municipal  law 
of  the  place  only,  does  not  continue.  So  in  speaking  of  the  effect  of  bring- 
ing a  slave  into  England,  he  says,  he  ceases  to  be  a  slave  in  England,  only 
because  there  is  no  law  which  sanctions  his  detention  in  slavery.  Best,  J., 
declared  his  opinion  to  the  same  effect.     Slavery  is  a  local  law,  therefore 


176  CONFLICT    OF   LAWS.  [CH.  IV. 

change  of  legal   condition,  which  imposes  rights  and 
obligations  totally  inconsistent  with  the  former  rights 


if  a  man  wishes  to  preserve  his  slaves,  let  him  attach  them  to  him  by 
affection,  or  make  fast  the  bars  of  their  prison,  or  rivet  well  their  chains, 
for  the  instant  they  get  beyond  the  limits  where  slavery  is  recognized  by 
the  local  law,  they  have  broken  their  chains,  they  have  escaped  from  their 
prison,  and  are  free.  That  slavery  is  a  relation  founded  in  force,  not  in 
light,  existing,  where  it  does  exist,  by  force  of  positive  law,  and  not  re- 
cognized as  founded  in  natural  right,  is  intimated  by  a  definition  of  slavery 
in  the  civil  law  :  '  Servitus  est  constitulio  juris  gentium,  qua  quis  dominio 
alieno  contra  naturam  subjicitiir.'  Upon  a  general  review  of  the  author- 
ities, and  upon  an  application  of  the  well  established  principles  upon  this 
subject,  we  think  they  fully  maintain  the  point  stated,  that  though  slavery 
is  contrary  to  natural  right,  and  to  the  principles  of  justice,  humanity,  and 
sound  policy,  as  we  adopt  them,  and  found  our  own  laws  upon  them,  yet 
not  being  contrary  to  the  laws  of  nations,  if  any  other  state  or  community 
see  fit  to  establish  and  continue  slavery  by  law,  so  far  as  the  legislative 
power  of  that  country  extends,  we  are  bound  to  take  notice  of  the  ex- 
istence of  those  laws,  and  we  are  not  at  liberty  to  declare  and  hold  an  act 
done  within  those  limits  unlawful  and  void,  upon  our  views  of  morality 
and  policy,  which  the  sovereign  and  legislative  power  of  the  place  has 
pronounced  to  be  lawful.  If,  therefore,  an  unwarranted  interference  and 
wrong  is  done  by  our  citizens  to  a  foreigner,  acting  under  the  sanction  of 
such  laws,  and  within  their  proper  limits,  that  is,  withm  the  local  limits 
of  the  power  by  whom  they  are  thus  established,  or  on  the  liigh  seas, 
which  each  and  every  nation  has  a  right  in  common  with  all  others  to 
occupy,  our  laws  would  no  doubt  afford  a  remedy  against  the  wrong  done. 
So  m  pursuance  of  a  well-known  maxim,  that,  in  the  construction  of  con- 
tracts, the  lex  loci  contractus  shall  govern,  if  a  person  having  in  other 
respects  a  right  to  sue  in  our  courts,  shall  bring  an  action  agamst  another, 
liable  in  other  respects  to  be  sued  in  our  courts,  upon  a  cimtraci  made 
upon  the  subject  of  slavery  in  a  State,  where  slavery  is  allowed  by  law, 
the  law  here  would  give  it  effect.  As  if  a  note  of  hand  made  in  New 
Orleans  were  sued  on  here,  and  the  defence  should  be,  that  it  was  a  bad 
consideration,  or,  without  consideration,  because  given  for  the  price  of  a 
slave  sold,  it  may  well  be  admitted,  that  such  a  defence  could  not  prevail, 
because  the  contract  was  a  legal  one  by  the  law  of  the  place  where  it  was 
made.l  This  view  of  the  law  applicable  to  slavery,  marks  strongly  the 
distinction  between  the  relation  of  master  and  slave,  as  established  by  the 
local  law  of  particular  States,  and  in  viriue  of  that  sovereign  power  and 
independent  authority,  which  each  independent  State  concedes  to  every 

1  But  see  post,  ^  259. 


CH.  IV.]  CAPACITY    OF   PERSONS.  177 

and  obligations  of  the  same  persons.     Persons,  bound 
by  particular   contracts,  which   restrain  their  liberty, 


other,  and  those  natural  and  social  relations,  which  are  everywhere  and 
by  ail  people  recognized,  and  which  though  they  may  be  modified  and 
regulated  by  municipal  law,  are  not  founded  upon  it,  such  as  the  relation 
of  parent  and  child,  and  husband  and  wife.  Such  also  is  the  principle, 
upon  which  the  general  right  of  property  is  founded,  being  in  some  form 
universally  recognized  as  a  natural  right,  independently  of  municipal  law. 
This  affords  an  answer  to  the  argument  drawn  from  the  maxim,  that  the 
right  of  personal  property  follows  the  person,  and  therefore,  where  by  the 
law  of  a  place,  a  person  there  domiciled  acquires  personal  property,  by  the 
comity  of  nations,  the  same  must  be  deemed  his  property  everywhere.  It 
is  obvious,  that  if  this  were  true,  in  the  extent  in  which  the  argument 
employs  it,  if  slavery  exists  anywhere,  and  if  by  the  laws  of  any  place  a 
property  can  be  acquired  in  slaves,  the  law  of  slavery  must  extend  to  every 
place,  where  such  slaves  may  be  carried.  The  maxim,  therefore,  and  the 
argument  can  apply  only  to  those  commodities,  which  are  everywhere, 
and  by  all  nations,  treated  and  deemed  subjects  of  property.  But  it  is  not 
speaking  with  strict  accuracy  to  say,  that  a  property  can  be  acquired  in 
human  beings  by  local  laws.  Each  State  may,  for  its  own  convenience, 
declare,  that  slaves  shall  be  deemed  property,  and  that  the  relations  and 
laws  of  personal  chattels  shall  be  deemed  to  apply  to  them ;  as  for  in- 
stance, that  they  may  be  bought  and  sold,  delivered,  attached,  levied 
upon  ;  that  trespass  will  lie  for  an  injury  done  to  them,  or  trover  for  con- 
verting them.  But  it  would  be  a  perversion  of  terms  to  say,  that  such  local 
laws  do  in  fact  make  them  personal  property  generally ;  they  can  only 
determine,  that  the  same  rules  of  law  shall  apply  to  them,  as  are  applica- 
ble to  property,  and  this  effect  will  follow  only  so  far  as  such  laws  proprio 
vigore  can  operate.  The  same  doctrine  is  recognized  in  Louisiana.  In 
the  case  of  Lunsford  v.  Coquillon,  14  Martin,  R.  404,  it  is  thus  stated  ;  — 
The  relation  of  owner  and  slave  in  the  States  of  this  Union,  in  which  it 
has  a  legal  existence,  is  a  creature  of  the  municipal  law.  See  Story, 
Conflict  of  Laws,  92,  97.  The  same  principle  is  declared  by  the  Court  in 
Kentucky,  in  the  case  of  Rankin  v.  Lydia,  2  Marshall,  R.  470.  They 
say,  slavery  is  sanctioned  by  the  laws  of  this  State ;  but  we  consider  this 
as  a  right,  existing  by  positive  law  of  a  municipal  character,  without 
foundation  in  the  law  of  nature.  The  conclusion,  to  which  we  come  with 
this  view  of  the  law,  is  this  :  That  by  the  general  and  now  well-established 
law  of  this  Commonwealth,  bond  slavery  cannot  exist,  because  it  is  con- 
trary to  natural  right,  and  repugnant  to  numerous  provisions  of  the  con- 
stitution and  laws,  designed  to  secure  the  liberty  and  personal  rights  of 
all  persons  within  its  limits  and  entitled  to  the  protection  of  its  laws. 
That  though  by  the  laws  of  a  foreign  State,  meaning  by  '  foreign '  in 


178  CONFLICT   OF   LAWS.  [CH.  IV. 

debtors,  apprentices,  and  others,  lose  their  character 
and  condition  for  the  time,  when  they  reside  in  another 


this  connection,  a  State  governed  by  its  own  laws,  and  between  which 
and  our  own  there  is  no  dependence  one  upon  the  other  ;  but  which  in 
this  respect  are  as  independent  as  foreign  States  ;  a  person  may  acquire  a 
property  in  a  slave,  that  such  acquisition,  being  contrary  to  natural  right, 
and  atfected  by  local  law,  is  dependent  upon  such  local  law  for  its  existence 
and  efficacy,  and  being  contrary  to  the  fundamental  law  of  the  State,  such 
general  right  of  property  cannot  be  exercised  or  recognized  here.  That  as 
a  general  rule,  all  persons  coming  within  the  limits  of  a  State,  become 
subject  to  all  its  municipal  laws,  civil  and  criminal,  and  entitled  to  the 
privileges,  which  those  laws  confer,  that  this  rules  applies  as  well  to 
blacks,  as  whites,  except  the  case  of  fugitives,  to  be  afterwards  consi- 
dered ;  that  if  such  persons  have  been  slaves,  they  become  free,  not  so 
much  because  any  alteration  is  made  in  their  status,  or  condition,  as  be- 
cause there  is  no  law  which  will  warrant,  but  there  are  laws,  if  they 
choose  to  avail  themselves  of  them,  which  prohibit  their  forcible  deten- 
tion, or  forcible  removal.  That  the  law  arising  from  the  comity  of  na- 
tions cannot  apply,  because  if  it  did,  it  would  follow  as  a  necessary 
consequence,  that  all  those  persons,  who,  by  force  of  local  laws,  and  within 
all  foreign  places,  where  slavery  is  permitted,  have  acquired  slaves  as 
property,  might  bring  their  slaves  here,  and  exercise  over  them  the  rights 
and  power,  which  an  owner  of  property  might  exercise,  and  for  any 
length  of  time,  short  of  acquiring  a  doraicil,  that  such  an  application  of 
the  law  would  be  wholly  repugnant  to  our  laws,  entirely  inconsistent  with 
our  policy  and  our  fundamental  principles,  and  is  therefore  inadmissible. 
Whether,  if  a  slave  voluntarily  brought  here,  and  with  his  own  consent 
returning  with  his  master,  would  resume  his  condition  as  a  slave,  is  a 
question,  which  was  incidentally  raised  in  the  argument,  but  is  one  on 
which  we  are  not  called  on  to  give  an  opinion  in  this  case,  and  we  give 
none.  From  the  principle  above  stated,  on  which  a  slave  brought  here 
becomes  free,  to  wit,  that  he  becomes  entitled  to  the  protection  of  our 
laws,  and  there  is  no  law  to  warrant  his  forcible  arrest  and  removal,  it 
would  seem  to  follow,  as  a  necessary  conclusion,  that,  if  the  slave  waives 
the  protection  of  those  laws,  and  returns  to  the  State,  where  he  is  held  as 
a  slave,  his  condition  is  not  changed.  In  the  case  Ex  parte  Grace,  2 
Hagg.  Adm.  R.  94,  this  question  was  fully  considered  by  Sir  William  Scott, 
in  the  case  of  a  slave  brought  from  the  West  Indies  to  England,  and  after- 
wards voluntarily  returning  to  the  West  Indies  ;  and  he  held,  that  she 
was  reinstated  in  her  condition  of  slavery.  A  different  decision,  I  believe, 
has  been  made  of  the  question  in  some  of  the  United  States  ;  but  for  the 
reasons  already  given,  it  is  not  necessary  to  consider  it  further  here.  The 
question  has  thus  far  been  considered  as  a  general  one,  and  applicable  to 


CH.  IV.]  CAPACITY    OF   PERSONS.  179 

country,  and  are  entitled  as  persons  totally  free,  although 
they  return  to  their  original  servitude  and  obligations, 


cases  of  slaves  brought  from  any  foreign  state  or  country  ;  and  it  now  be- 
comes necessary  to  see,  how  far  this  result  differs,  where  the  person  is 
claimed  as  a  slave  by  a  citizen  of  another  Stale  of  this  Union,  that  is, 
how  the  question,  as  between  citizens  of  different  States,  is  affected  by  the 
provisions  of  the  Constitution  and  laws  of  the  United  States.  In  Article 
4,  Sec.  2,  the  Constitution  declares,  that  no  person  held  to  service  or  labor 
in  one  State  under  the  laws  thereof,  escaping  into  another,  shall  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged  from  such  service 
or  labor,  but  shall  be  delivered  up  on  claim  of  the  party,  to  whom  such 
service  or  labor  may  be  due.  .The  law  of  Congress  made  in  pursuance  of 
this  article,  provides,  that  when  any  person  held  to  labor  in  any  of  the 
United  States,  &c.,  shall  escape  into  any  other  of  the  said  States  or  Terri- 
tories, the  person  entitled,  &c.,  is  empowered  to  arrest  the  fugitive,  and 
upon  proof  made,  that  the  person  so  seized,  under  the  law  of  the  State, 
from  which  he  or  she  fled,  owes  service,  &c.  Act  of  February  12,  1793. 
In  regard  to  these  provisions,  the  Court  are  of  opinion,  that  as  by  the 
general  law  of  this  Commonwealth,  slavery  cannot  exist,  and  the  rights 
and  powers  of  slave  owners  cannot  be  exercised  therein,  the  effect  of  this 
provision  in  the  Constitution  and  laws  of  the  United  States  is  to  limit  and 
restrain  the  operation  of  this  general  rule,  so  far  as  it  is  done  by  the  plain 
meaning  and  obvious  intent  and  import  of  the  language  used,  and  no  far- 
ther. The  constitution  and  law  manifestly  refer  to  the  case  of  a  slave 
escaping  from  a  State,  where  he  owes  service  or  labor,  into  another  State  or 
Territory.  He  is  termed  a  fugitive  from  labor  ;  the  proof  to  be  made  is, 
that  he  owed  service  or  labor,  under  the  laws  of  the  State  or  Territory  from 
which  he  fled,  and  the  authority  given  is  to  remove  such  fugitive  to  the 
State  from  which  he  fled.  This  language  can,  by  no  reasonable  construc- 
tion, be  applied  to  the  case  of  a  slave,  who  has  not  fled  from  the  State,  but 
who  has  been  brought  into  this  State  by  his  master.  The  same  conclu- 
sion will  result  from  a  consideration  of  the  well  known  circumstances,  un- 
der which  this  constitution  was  formed.  Before  the  adoption  of  the  con- 
stitution, the  States  were,  to  a  certain  extent,  sovereign  and  independent, 
and  were  in  a  condition  to  settle  the  terms,  upon  which  they  would  form 
a  more  perfect  union.  It  has  been  contended  by  some  over  zealous  phi- 
lanthropists, that  such  an  article  in  the  constitution  could  be  of  no  binding 
force  or  validity,  because  it  was  a  stipulation  contrary  to  natural  right. 
But  it  is  diflicult  to  perceive  the  force  of  this  objection.  It  has  already 
been  shown,  that  slavery  is  not  contrary  to  the  laws  of  nations.  It  would 
then  be  the  proper  subjeo*  of  treaties  among  sovereign  and  independent 
powers.     Suppose,  instead  of  forming   the  present  constitution,  or  any 


180  CONFLICT    OF  LAWS.  [CH.  IV. 

upon  coming  back  to  the   country  they  had  quitted  ; 
and  even  in  the  case  of  slavery,  slaves  themselves  pos- 


other  confederation,  the  several  States  had  become  in  all  respects  sovereign 
and  independent,  would  it  not  have  been  competent  for  them  to  stipulate, 
that  fugitive  slaves  should  be  mutually  restored,  and  to  frame  suitable 
regulations,  under  which  such  a  stipulation  should  be  carried  into  effect  ? 
Such  a  stipulation  would  be  highly  important  and  necessary,  to  secure 
peace  and  harmony  between  adjoining  nations,  and  to  prevent  perpetual 
collisions  and  border  wars.  It  would  be  no  encroachment  on  the  rights  of 
the  fugitive  ;  for  no  stranger  has  a  just  claim  to  the  protection  of  a  foreign 
State  against  its  will,  especially  where  a  claim  to  such  protection  would 
be  likely  to  involve  the  State  in  war  ;  and  each  independent  State  has  a 
right  to  determine  by  its  own  laws  and  treaties  who  may  come  to  reside  or 
seek  shelter  within  its  limits.  Now  the  constitution  of  the  United  States 
partakes  both  of  the  nature  of  a  treaty  and  of  a  form  of  government.  It 
regards  the  States,  to  a  certain  extent,  as  sovereign  and  independent  com- 
munities, with  full  power  to  make  their  own  laws,  and  regulate  their  own 
policy,  and  fixes  the  terms  upon  which  their  intercourse  with  each  other 
shall  be  conducted.  In  respect  to  foreign  relations,  it  regards  the  people 
of  the  States  as  one  community,  and  constitutes  a  form  of  government  for 
them.  It  is  well  known,  that,  when  this  constitution  was  formed,  some 
of  the  States  permitted  slavery  and  the  slave  trade,  and  considered  them 
highly  essential  to  their  interests,  and  that  some  other  States  had  abolished 
slavery  within  their  own  limits,  and,  from  the  principles  deduced  and  policy 
avowed  by  them,  might  be  presumed  to  desire  to  extend  such  abolition  fur- 
ther. It  was,  therefore,  manifestly  the  intent  and  the  object  of  one  party  to 
this  compact  to  enlarge,  extend,  and  secure,  as  far  as  possible,  the  rights  and 
powers  of  the  owners  of  slaves,  within  their  own  limits,  as  well  as  in 
other  States,  and  of  the  other  party,  to  limit  and  restrain  them.  Under 
these  circumstances,  the  clause  in  question  was  agreed  on,  and  introduced 
into  the  constitution.  And  as  it  was  well  considered,  as  it  was  intended 
to  secure  peace  and  harmony,  and  to  fix,  as  precisely  as  language  could 
do  it,  the  limit  to  which  the  rights  of  one  party  should  be  exercised  with- 
in the  territory  of  the  other,  it  is  to  be  presumed,  that  they  selected  terms 
intended  to  express  their  exact  and  their  whole  meaning  ;  and  it  would 
be  a  departure  from  the  purpose  and  spirit  of  the  compact,  to  put  any 
other  construction  upon  it,  than  that  to  be  derived  from  the  plain  and  na- 
tural import  of  the  language  used.  Besides  ;  this  construction  of  the  pro- 
vision in  the  constitution  gives  to  it  a  latitude,  sufficient  to  afford  effectual 
security  to  the  owners  of  slaves.  The  States  have  a  plenary  power  to  make  all 
laws  necessary  for  the  regulation  of  slavery  and  the  rights  of  slave  owners, 
whilst  the  slaves  remain  within  their  territorial  limits  ;  and  it  is  only  when 
they  escape,  without  the  consent  of  their  owners,  into  other  States,  that 


CH.  IV.]  CAPACITY  OF  PERSONS.  181 

sess  rights  and  privileges  in  one  character,  which  they 
are  not  entitled  to  in  another.     The  domestic  slave  may, 


they  require  the  aid  of  other  States  to  enable  them  to  regain  their  domi- 
nion over  the  fugitives.  But  this  point  is  supported  by  most  respectable 
and  unexceptionable  authorities.  In  the  case  of  Butler  v.  Hooper,  1 
Wash.  C.  C.  R.  499,  it  was  held  by  Mr.  Justice  Washington,  in  terms, 
that  the  provision  in  the  constitution  which  we  are  now  considering,  does 
not  extend  to  the  case  of  a  slave,  voluntarily  carried  by  his  master  into 
another  State,  and  there  leaving  him  under  the  protection  of  some  law 
declaring  him  free.  In  this  case,  however,  the  master  claimed  to  hold  the 
slave  in  virtue  of  a  law  of  Pennsylvania,  which  permitted  members  of 
Congress  and  sojourners  to  retain  their  domestic  slaves,  and  it  was  held, 
that  he  did  not  bring  himself  within  either  branch  of  the  exception,  be- 
cause he  had,  for  two  years  of  the  period,  ceased  to  be  a  member  of  Con- 
gress, and  so  lost  the  privilege  ;  and  by  having  become  a  resident,  could 
not  claim  as  a  sojourner.  The  case  is  an  authority  to  this  point,  that  the 
claimant  of  a  slave,  to  avail  himself  of  the  provisions  of  the  constitution 
and  laws  of  the  United  States,  must  bring  himself  within  their  plain  and 
obvious  meaning,  and  they  will  not  be  extended  by  construction  ;  and  that 
the  clause  in  the  constitution  is  confined  to  the  case  of  a  slave  escaping 
from  one  State  and  fleeing  to  another.  But  in  a  more  recent  case,  the 
point  was  decided  by  the  same  eminent  judge.  Ex  parte  Simmonds,  4 
Wash.  C.  C.  R.  396.  It  was  an  application  for  a  certificate  under  ^  3  of  the 
Act  of  Feb.  12,  1793.  Pie  held  that  both  the  constitution  and  the  laws  of 
the  United  States  apply  only  to  fugitives,  escaping  ftom  one  State  and 
fleeing  to  another,  and  not  to  the  case  of  a  slave  voluntarily  brought  by 
his  master.  Another  question  was  made  in  that  case,  whether  the  slave 
was  free  by  the  laws  of  Pennsylvania,  which,  like  our  own,  in  effect  libe- 
rate slaves  voluntarily  brought  within  the  State  ;  but  there  is  an  excep- 
tion in  favor  of  Members  of  Congress,  Foreign  Ministers  and  Consuls,  and 
sojourners.  But  this  provision  is  qualified  as  to  sojourners  and  persons 
passing  through  the  State  in  such  manner,  as  to  exclude  them  from  the 
benefit  of  the  exception,  if  the  slave  was  retained  in  the  State  longer  than 
six  months.  The  slave  in  that  case,  having  been  detained  in  the  State 
more  than  six  months,  was  therefore  held  free.  This  case  is  an  authority 
to  this  point ;  —  the  general  rule  being,  that  if  a  slave  is  brought  into  a 
State  where  the  laws  do  not  admit  slavery,  he  will  be  held  free,  the  per- 
son who  claims  him  as  a  slave  under  any  exception  or  limitation  of  the 
general  rule,  must  show  clearly  that  the  case  was  within  such  exception. 
The  same  principle  was  substantially  decided  by  the  State  court  of  the 
same  State  in  the  case  of  Commonwealth  v.  Holloway,  2  Serg.  &  Rawle 
305.  It  was  the  case  of  a  child  of  a  fugitive  slave,  born  in  Pennsylvania. 
It  was  held,  that  the  constitution  of  the  United  States  was  not  inconsist- 
16 


182  CONFLICT    OF   LAWS.  [CH.  IV. 

in  that  character,  by  law  accompany  his  master  or  mis- 
tress to  any  part  of  the  world.     But  that  privilege  ex- 


ent  with  the  law  of  Pennsylvania  ;  that  as  the  law  and  constitution  of  the 
United  States  did  not  include  the  issue  of  fugitive  slaves  in  terms,  it  did 
not  embrace  them  by  construction  or  implication.  The  Court  considers 
the  law  as  applying  only  to  those  who  escape.  —  Yet  by  the  operation  of 
the  maxim  which  obtains  in  all  the  States  wherein  slavery  is  permitted  by 
law,  Partus  sequitur  ventrem,  the  offspring  would  follow  the  condition  of 
the  mother,  if  either  the  rule  of  comity  contended  for  applied,  or  if  the 
law  of  the  United  Slates  would  be  extended  by  construction.  The  same 
decision  has  been  made  in  Indiana,  3  Amer.  Jurist,  404.  In  Louisiana,  it 
had  been  held,  that  if  a  person  with  a  slave  goes  into  a  State  to  reside, 
where  it  is  declared  that  slavery  shall  not  exist,  for  ever  so  short  a  time, 
the  slave  ipso  facto  becomes  free,  and  will  be  so  adjudged  and  considered 
afterwards  in  all  other  States  ;  and  a  person  moving  from  Kentucky  to 
Ohio,  to  reside,  his  slaves  thereby  became  free,  and  were  so  held  in  Lou- 
isiana. This  case  also  fully  recognizes  the  authority  of  States  to  make 
laws  dissolving  the  relation  of  master  and  slave  ;  and  considers  the  spe- 
cial limitation  of  the  general  power  by  the  Federal  Constitution,  as  a  forcible 
implication  in  proof  of  the  existence  of  such  general  powers.  Lunsford  w.Co- 
quillon,  14  Martin,  R.  465.  And  in  the  above  cited  case  from  Louisiana,  it  is 
very  significantly  remarked,  that  such  a  construction  of  the  constitution  and 
law  of  the  United  States  can  work  injury  to  no  one,  for  the  principle  acts 
only  on  the  willing,  and  Volenti  non  fit  injuria.  The  same  rule  of  construc- 
tion is  adopted  in  analogous  cases  in  other  countries,  that  is,  where  an 
institution  is  forbidden,  but  where,  for  special  reasons  and  to  a  limited  ex- 
lent,  such  prohibition  is  relaxed,  the  exemption  is  to  be  construed  strictly  ; 
and  whoever  claims  the  exemption,  must  show  himself  clearly  within  it, 
and  where  the  facts  do  not  bring  the  case  within  the  exemption,  general 
rule  has  its  effect.  By  a  general  law  of  France,  all  persons  inhabiting 
or  being  within  the  territorial  limits  of  France,  are  free.  An  edict  was 
passed  by  Louis  XIV.,  called  '  Le  Code  Noir,'  respecting  slavery  in  the 
colonies.  In  1716,  an  edict  was  published  by  Louis  XV.,  concerning 
slavery  in  the  colonies,  and  reciting  among  other  things,  that  many  of  the 
colonists  were  desirous  of  bringing  their  slaves  into  France,  to  have  them 
confirmed  in  the  principles  of  religion,  and  to  be  instructed  in  various  arts 
and  handicrafts,  from  which  the  colonists  would  derive  much  benefit,  on 
the  return  of  the  slaves,  but  that  many  of  the  colonists  feared,  that,  their 
slaves  would  pretend  to  be  free  on  their  arrival  in  France,  from  which 
their  owners  would  sustain  considerable  loss,  and  be  deterred  from  pursu- 
ing an  object  at  once  so  pious  and  useful.  The  edict  then  provides  a  series 
of  minute  regulations,  to  be  observed  both  before  their  departure  from  the 
West  Indies,  and  on  their  arrival  in  France,  and  if  all   these  regulations 


CH.  IV.]  CAPACITY    OF   PERSONS.  183 

ists  no  longer  than  his  character  of  domestic  slave  at- 
taches to  him  ;  for,  should  the  owner  deprive  him  of 


are  strictly  complied  with,  the  negroes  so  brought  over  to  France  shall 
not  thereby  acquire  any  right  to  their  freedonn,  but  shall  be  compellable  to 
return  ;  but  if  the  owners  shall  neglect  to  comply  with  the  prescribed  regu- 
lations, the  negroes  shall  become  free,  and  ihe  owners  shall  lose  all 
property  in  them.  20  Howell,  State  Trials,  15,  note.  The  constitution 
and  laws  of  the  United  States,  then,  are  confined  to  cases  of  slaves  escap- 
ing from  other  States,  and  coming  within  the  limits  of  this  State,  without 
the  consent  and  against  the  will  of  their  masters,  and  cannot  by  any  sound 
construction  extend  to  a  case  where  the  slave  does  not  escape,  and  does 
not  come  within  the  limits  of  this  Slate  against  the  will  of  the  master,  but 
by  his  own  act  and  permission.  This  provision  is  to  be  construed  ac- 
cording to  its  plain  terms  and  import,  and  cannot  be  extended  beyond  this, 
and  where  the  case  is  not  that  of  an  escape,  the  general  rule  shall  have  its 
effect.  It  is  upon  these  grounds,  we  are  of  opinion,  that  an  owner  of  a 
slave  in  another  State  where  slavery  is  warranted  by  law,  voluntarily 
bringing  such  slave  into  this  State,  has  no  authority  to  detain  him  against  his 
will,  or  to  carry  him  out  of  the  State  against  his  consent,  for  the  purpose 
of  being  held  in  slavery.  This  opinion  is  not  to  be  considered  as  extend- 
ing to  a  case  where  the  owner  of  a  fugitive  slave,  having  produced  a  cer- 
tificate according  to  the  law  of  the  United  Slates,  is  bona  fide  removing 
such  slave  to  his  own  domicil,  and  in  so  doing  passes  through  a  free  State  ; 
where  the  law  confers  a  right  or  favor,  by  necessary  implication  it  gives 
the  means  of  executing  it.  Nor  do  we  give  any  opinion  upon  the  case, 
where  an  owner  of  a  slave  in  one  State,  is  bona  fide  removing  to  another 
State,  where  slavery  is  allowed,  and  in  so  doing  necessarily  passes  through 
a  free  State,  or,  arriving  by  accident  or  necessity,  he  is  compelled  to  touch 
or  land  therein,  remaining  no  longer  than  necessary.  Our  geographical 
position  exempts  us  from  the  probable  necessity  of  considering  such  a 
case,  and  we  give  no  opinion  respecting  it.  The  child,  who  is  the  sub- 
ject of  this  habeas  corpus,  being  of  too  tender  years  to  have  any  will  or 
give  any  consent  to  be  removed,  and  her  mother  being  a  slave,  and  having 
no  will  of  her  own,  and  no  power  to  act  for  her  child,  she  is  necessarily 
left  in  the  custody  of  the  law.  The  respondent  having  claimed  the  cus- 
tody of  the  child,  in  behalf  of  Mr.  and  Mrs.  Slater,  who  claim  the  right 
to  carry  her  back  to  Louisiana,  to  be  held  in  a  state  of  slavery,  we  are  of 
opinion,  that  his  custody  is  not  to  be  deemed  by  the  Court  a  proper  and 
lawful  custody.  Under  a  suggestion  made  in  the  outset  of  this  inquiry, 
that  a  probate  guardian  would  probably  be  appointed,  we  shall  for  the 
present  order  the  child  into  a  temporary  custody,  to  give  time  for  an  ap- 
plication to  be  made  to  the  Judge  of  Probate.     [See  also  Commonwealth 


184  CONFLICT    OF   LAWS.  [CH.  IV. 

the  character  of  being  a  domestic  slave  by  employing 
him  as  a  field  slave,  he  would  be  deprived  of  the  right 
of  accompanying  his  master  out  of  the  colony."  ^ 

§  97.  Struck  with  the  inconveniences  of  the  doctrine 
of  the  ubiquity  of  the  law  of  the  domicil,  as  to  the  ca- 
pacity, state,  and  condition  of  persons,  as  an  absolute 
and  general  doctrine,  a  learned  Judge  in  the  Scottish 
courts^  has  not  hesitated  to  hold,  that  no  such  doctrine 
is  recognized,  as  of  universal  obligation  in  Scotland. 
"  Would  a  marriage  here,"  (says  he,)  "  be  declared  void, 
because  the  parties  were  domiciled  in  England,  and 
were  minors,  when  they  married  here,  and  of  course  in- 
capable, by  the  law  of  that  country,  of  contracting  mar- 
riage ?  This  category  of  law  does  not  afiect  the  con- 
tracting individuals,  only,  but  the  public,  and  that  in 
various  ways.  And  the  consequences  would  prove  not 
a  little  inconvenient,  embarrassing,  and  probably  even 
inextricable,  if  the  personal  incapacities  of  individuals, 
as  of  majors  and  minors,  the  competency  to  contract 
marriages,  and  infringe  matrimonial  engagements,  the 
rights  of  domestic  authority  and  service,  and  the  like, 
were  to  be  qualified  and  regulated  by  foreign  laws  and 
customs,  with  which  the  mass  of  the  population  must 
be  utterly  unacquainted.  Accordingly,  the  laws  of  this 
description  seem  nowhere  to  yield  to  those  of  foreign 


V.  Taylor,  3  Mete.  72,  where  this  doctrine  was  reaffirmed,  and  where  it  was 
also  held  that  the  consent  of  a  negro  slave,  then  only  eight  years  of  age, 
would  not  authorize  an  order  for  his  removal  to  a  state  of  slavery,  and  he 
was  delivered  over  to  a  guardian  appointed  for  him  by  the  Court  of  Pro- 
bate of  Massachusetts,  where  he  then  was.] 

1  The  Slave  Grace,  2  Hagg.  Adm.  R.  91,  113,  114.  It  seems  that 
Christinaeus  and  Gudelin  held  the  same  opinion  as  Lord  Stowell.  See 
Christineeus,  Vol.  4,  Decis.  80,  n.  4,  p.  115,  cited  also,  1  Burge,  Com. 
on  Col.  and  For.  Law,  P.  I,  ch.  10,  p.  749. 

2  Lord  Meadowbank  ;  Fergusson  on  Mar.  and  Divorce,  Appx.  361,  362. 


CH.  IV.]  CAPACITY    OF   PERSONS.  185 

countries ;  and  accordingly,  it  is  believed,  no  nation  has 
hitherto  thought  of  conferring  powers  and  forms  on  its 
courts  of  justice,  adequate  for  enabling  them  to  execute 
over  foreigners  regular  authority  for  enforcing  the  ob- 
servance by  them  of  the  laws  of  their  own  country, 
when  expatriated.  In  fact,  the  very  same  principles, 
which  prescribe  to  nations  the  administration  of  their 
own  criminal  law,  appear  to  require  a  like  exclusive 
administration  of  law  relative  to  the  domestic  relations. 
Hence,  both  in  England  and  Scotland,  the  most  regular 
constitution  abroad  of  domestic  slavery  was  held  to 
afford  no  claim  to  domestic  service  in  this  country, 
though  restrictions  for  only  such  service,  and  under 
such  domestic  authority,  as  our  laws  recognized.  The 
whole  order  of  society  would  be  disjointed,  were  the 
positive  institutions  of  foreign  nations  concerning  the 
domestic  relations,  and  the  capacities  of  persons  regard- 
ing them,  admitted  to  operate  universally,  and  form 
privileged  castes,  living  each  under  separate  laws,  like 
the  barbarous  nations  during  many  centuries  after  their 
settlement  in  the  Roman  empire."^ 

§  98.  These  diversities  in  the  practical  jurisprudence 
of  different  countries,  as  to  the  effect  of  personal  ability 
and  disability,  and  personal  capacity  or  incapacity, 
abundantly  establish,  in  the  first  place,  that  there  is  no 
general  rule  on  the  subject,  which  is  admitted  by  all 
nations ;  and,  in  the  next  place,  that  the  very  excep- 
tions introduced  or  conceded  by  those  who  most  strenu- 
ously contend  for  the  universal  operation  of  the  law  of 
the  domicil  of  the  party,  either  native  or  acquired,  in 
cases  of  this  nature,  as  satisfactorily  establish,  that  no 
general  rules,  have  been  or  can  be  established,  which 


iLord  Meadowbank  ;  Fergusson  on  Mar.  and  Divorce,  Appx.  361,  262. 
16* 


186  CONFLICT    OF    LAWS.  [CH.  IV. 

may  not  work  serious  inconvenience  to  the  interests  or 
institutions  of  some  particular  countries,  or  to  some  par- 
ticular classes  of  capacities  or  incapacities.  The  proper 
conclusion,  then,  to  be  drawn  from  this  review  of  the 
subject  is,  that  the  rule  of  Huberus  is  correct,  that  no 
nation  is  under  any  obligation  to  give  effect  to  the  laws 
of  any  other  nation,  which  are  prejudicial  to  itself  or  to 
its  own  citizens ;  that  in  all  cases  every  nation  must 
judge  for  itself,  what  foreign  laws  are  so  prejudicial  or 
not ;  and  that,  in  cases  not  so  prejudicial,  a  spirit  of  co- 
mity and  a  sense  of  mutual  utility  ought  to  induce  every 
nation  to  allow  full  force  and  effect  to  the  laws  of  every 
other  nation.  This  is  the  doctrine  asserted  by  Mr.  Chan- 
cellor Kent ;  and  it  certainly  has  a  most  solid  founda- 
tion in  the  actual  practice  of  nations.  "There  is  no 
doubt,"  (says  he,)  "  of  the  truth  of  the  general  proposi- 
tion, that  the  laws  of  a  country  have  no  binding  force 
beyond  its  own  territorial  limits ;  and  their  authority  is 
admitted  in  other  states,  not  ex  proprio  vigore,  but  ex 
comitate ;  or  in  the  language  of  Huberus,  Quatemis  sine 
prcejudicio  indulgentium  fieri  potest.  Every  independent 
community  will  judge  for  itself,  how  far  the  comitas 
inter  communitates  is  to  be  permitted  to  interfere  with 
its  domestic  interests  and  policy,  &c.  It  is  a  maxim, 
that  Locus  regit  actum,  unless  the  intention  of  the  par- 
ties to  the  contrary  be  clearly  shown.  It  is,  however,  a 
necessary  exception  to  the  universality  of  the  rule,  that 
no  people  are  bound  to  enforce,  or  hold  valid  in  their 
courts  of  justice,  any  contract,  which  is  injurious  to 
their  public  rights,  or  olfends  their  morals,  or  contra- 
venes their  policy,  or  violates  a  public  law."  ^ 


1  2  Kent,  Comm.  Lect.  39,  p.  457,  458,  (3d  edit.)  ;  post,^  244  to  ^  259. 
See  also  Greenwood  v.  Curtis,  6  Mass.  R.  378,  379.     This  subject  is  a 


CH.    IV.]  CAPACITY    OF   PERSONS.  187 

§  99.  In  discussing  this  subject,  our  attention  has 
been  more  particularly  drawn  to  the  common  cases  of 
incapacity,  resulting  from  minority,  and  marriage,  and 
legitimacy.  But  the  principles  which  apply  to  them 
are  not  materially  different  from  those  which  apply  to 
cases  of  idiocy,  insanity,  and  prodigality.  The  extent 
of  the  rights  and  authorities  of  guardians,  curators, 
parents,  and  masters,  over  persons  subjected  to  their 
control,  or  committed  to  their  charge,  may,  in  a  general 
sense,  be  said  to  depend,  so  far  as  they  are  to  be  recog- 
nized or  enforced  by  and  in  foreign  nations,  upon  the 
same  common  ground  of  international  jurisprudence, 
that  is  to  say,  upon  a  general  comity,  founded  in  the 
sense  of  mutual  interests,  mutual  benefits,  and  mutual 
obligations  to  cultivate  peace  and  harmony.  It  was 
said,  on  a  recent  occasion,  with  great  force  and  pro- 
priety, by  Mr.  Chief  Justice  Taney,  in  delivering  the 
opinion  of  the  Supreme  Court ;  "  The  comity  thus  ex- 
tended to  other  nations  is  no  impeachment  of  sove- 
reignty. It  is  the  voluntary  act  of  the  nation,  by 
which  it  is  offered,  and  is  inadmissible,  when  contrary 
to  its  policy  or  prejudicial  to  its  interests.  But  it  con- 
tributes so  largely  to  promote  justice  between  indi- 
viduals, and  to  produce  a  friendly  intercourse  between 
the  sovereignties  to  which  they  belong,  that  courts  of 
justice  have  constantly  acted  upon  it,  as  a  part  of  the 
voluntary  law  of  nations.^ 


good  deal  discussed  ia  the  able  work  of  Mr.  Fergusson  on  Marriage  and 
Divorce  ;  and  the  opinions  of  the  judges  in  the  case  of  Gordon  v.  Pye,  in 
1815,  and  that  of  Edmonstone  and  others,  in  1816,  before  the  Scottish 
courts,  are  particularly  worthy  of  examination,  from  their  comprehensive 
learning  and  ability.  Fergusson,  Appx.  p.  276  to  p.  363.  See  also,  Id. 
p.  384  to  p.  422. 

1  Bank  of  Augusta  v.  Earle,  13  Peters,  R.  589. 


188  CONFLICT    OF   LAWS.  [CH.  IV. 

§  100.  In  concluding  this  discussion,  as  to  the  opera- 
tion of  foreign  laws  on  questions  relating  to  the  capa- 
city, state,  and  condition  of  persons,  it  may  be  useful  to 
bring  together  some  of  those  rules  which  seem  best 
established  in  the  jurisprudence  of  England  and  Ame- 
rica, leaving  others  of  a  more  doubtful  character  and 
extent  to  be  decided,  as  they  may  arise  in  the  proper 
forum. 

§  101.  First.  The  capacity,  state,  and  condition  of 
persons  according  to  the  law  of  their  domicil  will 
generally  be  regarded  as  to  acts  done,  rights  acquired, 
and  contracts  made,  in  the  place  of  their  domicil, 
touching  property  situate  therein.  If  these  acts,  rights, 
and  contracts  have  validity  there,  they  will  be  held 
equally  valid  everywhere.  If  invalid  there,  they  will 
be  held  invalid  everywhere.^ 

§  102.  Secondly.  As  to  acts  done,  and  rights  ac- 
quired, and  contracts  made  in  other  countries,  touching 
property  therein,  the  law  of  the  country,  where  the  acts 
are  done,  the  lights  are  acquired,  or  the  contracts  are 
made,  will  generally  govern  in  respect  to  the  capacity, 
state,  and  condition  of  persons.^.  In  affirmance  of  this 
doctrine  the  Supreme  Court  of  Louisiana,  in  a  case, 
where  the  direct  question  came  before  them,  expressly 
stated,  that  they  had  no  difficulty  in  assenting  to  the 
proposition,  that  contracts  entered  in  other  States,  as  it 
relates  to  their  validity,  and  the  capacity  of  the  con- 
tracting parties,  are  to  be  tried  in  Louisiana  by  the 
Lex  loci  celehrati  contractus.     And  that  if  a  contract  was 


1  See  Male  v.  Roberts,  3  Esp.  R.  63  ;  Thompson  i'.  Ketcham,  8  Johns. 
R.  189  ;  ante,  ^  64  to  ^  68  ;  Id.  ^  87.  See  Foelix,  Conflict  des  Lois 
Revue  Etrang.  et  Frang.  Tom.  7,  1840,  ^  38,  p.  342  to  p.  344. 

2  Ante,  ^  69,  70  to  §  74 ;  Id.  §  80,  81,  82,  87. 


CH.  IV.]  CAPACITY   OF   PERSONS.  189 

entered  into  in  another  State  in  conformity  to  the  local 
law,  to  have  its  effects  and  execution  there,  the  Courts 
of  Louisiana  cannot  declare  it  a  nullity  on  the  ground, 
that  it  would  not  be  valid  according  to  the  system  of 
jurisprudence  of  that  State,  even  if  one  or  both  of  the 
contracting  parties  were  not  citizens  of  such  foreign 
State.i 

§  102  (2.  It  has  been  well  remarked  by  Mr.  Burge  ; 
"This  doctrine  promotes,  whilst  that  to  which  it  is 
opposed,  is  inconsistent  with  those  principles  of  mutual 
convenience,  which  induce  the  recognition  of  foreign 
laws.  The  obstacles  to  commercial  intercourse  between 
the  subjects  of  foreign  States  would  be  almost  insur- 
mountable, if  a  party  must  pause  to  ascertain,  not  by 
the  means  within  his  reach,  but  by  recourse  to  the  law 
of  the  domicil  of  the  person  with  whom  he  was  dealing, 
whether  the  latter  has  attained  the  age  of  majority? 
and,  consequently,  whether  he  is  competent  to  enter 
into  a  valid  and  binding  contract.  If  the  country,  in 
which  the  contract  was  litigated,  was  also  that  in  which 
it  had  been  entered  into,  and  if  the  party  enforcing  it 
were  the  subject  of  that  country,  it  would  be  unjust,  as 
well  as  unreasonable,  to  invoke  the  law  of  a  foreign 
State  for  the  benefit  of  the  foreigner,  and  to  deprive  its 
own  subject  of  the  benefit  of  the  law  of  his  own  State."  ^ 

§  102  h.  He  adds ;  "  It  has  been  hitherto  assumed, 
that,  according  to  the  law  of  the  domicil,  the  person 
was  a  minor,  and  incapable  of  contracting,  although  he 
had  attained  the  age,  which  in  loco  contractus  consti- 
tuted majority,  and  where,  according  to  that  law,  he 


1  Mr.  Justice  Bullard,  in  Andrews  v.  His  Creditors,  11  Louis.  R.  464  ; 
ante,  ^  95,  note  3,  ^  96  a. 

2  1  Burge,  Com.  on  Col.  and  For.  Law,  P.  1,  ch.  4,  p.  132. 


190  CONFLICT    OF   LAWS.  [CH.  IV. 

was  competent  to  contract.  In  such  a  case,  it  has  been 
submitted,  that  the  Lex  hci  contractus  ought  to  be  fol- 
lowed. It  ought  also  to  be  followed,  if  the  converse  of 
that  case  occurred,  and  he  had  attained  majority  ac- 
cording to  the  law  of  his  domicil,  but  was  a  minor 
according  to  that  which  prevailed  in  loco  contractus.  It 
is  true,  in  the  latter  case,  the  party  was  subject  to  no 
greater  liability  than  he  would  have  incurred  in  the 
place  of  his  domicil.  But  if  the  principle  be  correct, 
that  the  Lex  loci  contractus  ought  to  determine  the 
validity  of  a  contract  when  that  validity  depends  on  the 
capacity  of  the  contracting  party,  it  must  be  uniformly 
applied,  whether  the  law  prevailing  in  the  domicil  be 
that  which  capacitates  or  incapacitates.  For  it  would 
not  be  reasonable,  that  two  different  laws  should  be 
applied  to  one  and  the  same  contract,  and  that  the  lia- 
bility of  one  of  the  parties  should  be  decided  by  the 
Lex  loci  contractus,  and  that  of  the  other  by  the  Lex  loci 
domicilii"  ^ 

§  103.  Thirdly.  Hence  we  may  deduce,  as  a  corol- 
lary, that  in  regard  to  questions  of  minority  or  majority, 
competency  or  incompetency  to  marry,  incapacities  in- 
cident to  coverture,  guardianship,  emancipation,  and 
other  personal  qualities  and  disabilities,  the  law  of  the 
domicil  of  birth,  or  the  law  of  any  other  acquired  and 
fixed  domicil,  is  not  generally  to  govern,  but  the  Lex 
loci  contractus  aiit  actus,  the  law  of  the  place  where  the 
contract  is  made,  or  the  act  done.  Therefore,  a  person, 
who  is  a  minor,  until  he  is  of  the  age  of  twenty-five 
years  by  the  law  of  his  domicil,  and  incapable,  as  such, 
of  making  a  valid  contract  there,  may  nevertheless  in 
another  country,  where  he  would  be  of  age  at  twenty- 

1  I  Burge,  Comm.  on  Col.  and  For.  Law,  P.  1,  ch.  4,  p.  133. 


CH.  IV.]  CAPACITY  OF  PERSONS.  191 

one  years,  generally  make  a  valid  contract  at  that  age, 
even  a  contract  of  marriage.^ 

§  104.  Fourthly.  Personal  disqualifications,  not 
arising  from  the  law  of  nature,  but  from  the  principles 
of  the  customary  or  positive  law  of  a  foreign  country, 
and  especially  such  as  are  of  a  penal  nature,  are  not 
generally  regarded  in  other  countries,  where  the  like 
disqualifications  do  not  exist.^  Hence,  the  disqualifica- 
tions, resulting  from  heresy,  excommunication,  Popish 
recusancy,  infamy,  and  other  penal  disabilities,  are  not 
enforced  in  any  other  country,  except  that,  in  which 
they  originate.  They  are  strictly  territorial.^  So,  the 
state  of  slavery  will  not  be  recognized  in  any  country 
whose  institutions  and  policy  prohibit  slavery.* 

§  105.  Fifthly.  In  questions  of  legitimacy,  or  illegi- 
timacy, the  law  of  the  place  of  the  marriage  will  gene- 
rally govern,  as  to  the  issue  subsequently  born.  If  the 
marriage  is  valid  by  the  law  of  that  place,  it  will  gene- 
rally be  held  valid  in  every  other  country,  for  the 
purpose  of  ascertaining  legitimacy  and  heirship.  If 
invalid  there,  it  will  generally  (if  not  universally)  be 
held  invalid  in  every  other  country.^ 

§  105  a.  Sixthly.  As  to  issue  born  before  the  mar- 
riage, if  by  the  law  of  the  country,  where  they  are  born, 
they  would  be  legitimated  by  the  subsequent  marriage 
of  their  parents,  they  will  be  by  such  subsequent  mar- 
riage (perhaps  in  any  country,  but  at  all  events)  in  the 
same  country,  become  legitimate,  so  that,  this  character 


1  Ante,  %  75,  79,  80,  81,  82.     [See  also  Pearl  v.  Hansborough,  9  Hum- 
phreys, R.  426.] 

2  Ante,  ^  91  to  ^  96.  3  Ante,  §  91,  92,  94,  95. 

4  Co.  Lit.  79  b.,  Harg,  n.  44  ;  ante,  ^  96. 

5  Ante,  ^  79,80,  81,86. 


192  CONFLICT    OF    LAWS.  [CH.  IV. 

of  legitimacy  will  be  recognized  in  every  other  country. 
If  illegitimate  there,  the  same  character  will  belong  to 
them  in  every  other  country.^ 

§  106.  Seventhly.  No  nation  being  under  any  obli- 
gation to  yield  up  its  own  laws  in  regard  to  its  own 
subjects,  to  the  laws  of  other  nations,  it  will  not  suffer 
its  own  subjects  to  evade  the  operation  of  its  own  fun- 
damental policy  or  laws,  or  to  commit  frauds  in  viola- 
tion of  them,  by  any  acts  or  contracts  made  with  that 
design  in  a  foreign  country ;  and  it  will  judge  for  itself, 
how  far  it  will  adopt,  and  how  far  it  will  reject,  any 
such  acts  or  contracts.  Hence  the  acts  of  prodigals,  of 
minors,  of  idiots,  of  lunatics,  and  of  married  women,  es- 
caping into  foreign  countries,  are  not  to  be  deemed  as, 
of  course,  absolutely  obligatory,  even  if  sanctioned  by 
the  foreign  law,  unless  the  laws  of  their  own  country 
adopt  such  foreign  law,  as  a  rule  to  govern  in  such 
cases.^     Hence,  too,  a  person  born  before  wedlock,  who 


1  Ante,  ^  87,  ^  87  a  ;  Monro  v.  Saunders,  6  Bligh,  R.  468. 

2  An  apt  illustration  of  this  rule  may  be  found  in  the  present  law  of 
France.  By  that  law,  a  marriage  contracted  in  a  foreign  country  between 
Frenchmen,  or  a  Frenchman  and  a  stranger,  is  valid,  if  celebrated  accord- 
ing to  the  forms  used  in  that  country,  provided  it  is  preceded  by  a  proper 
publication  of  banns,  and  the  Frenchman  does  not  contravene  the  other 
provisions  of  the  French  law.  Upon  this  law  Toullier  remarks,  that 
the  conditions,  required  to  be  complied  with,  are  those  of  the  code  re- 
specting the  contract  of  marriage ;  for  as  the  laws  respecting  the  person 
follow  a  Frenchman  everywhere,  it  results,  that  even  in  a  foreign  country 
he  is  held  to  conform  to  the  French  laws  relative  to  the  age  of  the  con- 
tracting parlies,  their  family,  and  the  impediments  to  marriage.  1  Toul- 
lier, Droit  Civil  Francois,  art.  575,  p.  484.  So  that  French  minors,  who 
are  incapable  of  contracting  a  marriage  in  France,  are  disabled  everywhere, 
even  though  the  marriage  would  be  gyod  by  the  law  of  the  place  where 
the  marriage  is  celebrated.  The  English  and  American  Courts  would 
hold  such  a  marriage  good.  Code  Civil,  art.  144,  148,  170  ;  Merlin  Ru- 
pert, tit.  Loi,  §  6,  n.  1.  See  also  2  Kent,  Comm.  Lect.  26,  p.  93,  note, 
3d  edition.     The  doctrine  of  France,  in  this  respect,  is  but  an  illustration 


CH.  IT.]  CAPACITY  OF  PERSONS.  193 

in  the  country  of  his  birth  is  deemed  illegitimate,  may 
not,  by  a  subsequent  marriage  of  his  parents  in  another 
country,  by  whose  laws  such  a  marriage  would  make 
him  legitimate,  cease  to  be  illegitimate  in  the  country 
of  his  birth.^  Hence,  also,  if  a  marriage  is  by  the  laws 
of  a  country  indissoluble,  when  once  contracted  between 
its  own  subjects,  they  may  not,  by  a  mere  removal  into 
another  country,  at  least  without  a  change  of  domicil, 
be  deemed  capable  of  contracting  a  new  marriage  after 
a  divorce,  lawful  by  the  law  of  the  place,  to  which  they 
have  removed.^  In  short,  every  nation,  in  these  and 
the  like  cases,  will  govern  itself  by  such  rules  and  prin- 
ciples as  are  best  adapted  in  its  own  judgment  to  sub- 
serve its  own  substantial  interests,  and  fixed  policy,  and 
to  uphold  its  own  institutions,  as  well  as  to  promote  a 
liberal  intercourse,  and  a  spirit  of  confidence  and  reci- 
procal comity  with  all  other  nations.  But  this  subject 
will  be  more  fully  considered  in  the  succeeding  chapters. 


of  the  general  rule,  prescribed  by  the  Civil  Code  of  France,  (art.  3,)  that 
the  laws  respecting  the  slate  and  condition  of  Frenchmen  go\'ern  them, 
even  when  resident  in  a  foreign  country.     Ante,  ^  54. 

1  Ante,  ^  79,  §  87,  §  87  a,  §  1Q5  a. 

2  See  Rex  v.  Lolley,  1  Russ.  &  Ryan's  Cases,  236  ;  Tobey  v.  Lindsay, 
1  Dow,  R,  124  ;  Beazley  v.  Beazley,  3  Hagg.  Eccl.  R.  639 ;  McCarthy  v. 
De  Caix,  1831,  2  Russ.  &  Myine,  R.  620.  But  see  Warrender  v.  War- 
render,  9  Bligh,  R.  89  ;  post,  ^  215  to  ^  231. 


17 


194  CONFLICT    OF  LAWS.  [CH.  V. 


CHAPTER  V. 

MARRIAGE. 

§  107.  Having  treated  of  the  capacity  and  incapacity 
of  persons,  as  afiected  by  foreign  law,  and  especially  in 
relation  to  their  capacity  or  incapacity  to  contract  mar- 
riage in  a  foreign  country/  we  shall  next  proceed  to 
consider  more  fully  the  nature  and  effect  of  the  rela- 
tion of  marriage  contracted  by  and  between  persons, 
who  are  admitted  to  be  sui juris,  and  to  possess  compe- 
tent capacity  everywhere.^  We  shall  then  discuss  the 
manner  in  which  that  relation  may  be  dissolved,  and 
the  effect  of  such  dissolution. 

§  108.  Marriage  is  treated  by  all  civilized  nations  as 
a  peculiar  and  favored  contract.^  It  is  in  its  origin  a 
contract  of  natural  law.'*  It  may  exist  between  two 
individuals  of  different  sexes,  although  no  third  person 
existed  in  the  world,  as  happened  in  the  case  of  the 
common  ancestors  of  mankind.  It  is  the  parent  and 
not  the  child  of  society ;  Princijpium  urUs  et  quasi  semi- 


1  Ante,  ^  79  to  k  90. 

2  On  this  subject  consult  1  Surge,  Coinm.  on  Col.  and  For.  Law,  P,  I, 
ch.  5,  §  1,  2,  3,  p.  135  to  p.  201. 

3  See  Piers  v.  Piers,  2  House  of  Lords  Cases,  331. 

4  I  have  throughout  treated  marriage  as  a  contract  in  the  common  sense 
of  the  word,  because  this  is  the  light  in  which  it  is  ordinarily  viewed  by 
Jurists,  domestic  as  well  as  foreign.  But  it  appears  to  me  to  be  some- 
thing more  than  a  mere  contract.  It  is  rather  to  be  deemed  an  institution 
of  society,  founded  upon  the  consent  and  contract  of  the  parties  ;  and  in 
this  vieiv  it  has  some  peculiarities  in  its  nature,  character,  operation,  and 
extent  of  obligation,  different  from  what  belong  to  ordinary  contracts. 


CH.  v.]  MARRIAGE.  195 

narium  repiiblicce.  In  civil  society  it  becomes  a  civil 
contract  regulated  and  prescribed  by  law,  and  endowed 
with  civil  consequences.  In  many  civilized  countries, 
acting  under  a  sense  of  the  force  of  sacred  obligations, 
it  has  had  the  sanctions  of  religion  superadded.  It  then 
becomes  a  religious,  as  well  as  a  natural  and  civil  con- 
tract ;  for  it  is  a  great  mistake  to  suppose,  that  be- 
cause it  is  the  one,  therefore  it  may  not  likewise  be  the 
other.^  The  common  law  of  England  (and  the  like 
law  exists  in  America)  considers  marriage  in  no  other 
light  than  as  a  civil  contract.  The  holiness  of  the  ma- 
trimonial state  is  left  entirely  to  ecclesiastical  and  reli- 
gious scrutiny.^  In  the  Catholic  countries,  and  in  some 
of  the  Protestant  countries,  of  Europe,  it  is  treated  as 
a  sacrament.^ 

§  109.  There  are  some  remarks  on  this  subject,  made 
by  a  distinguished  Scottish  judge,  so  striking,  that 
they  deserve  to  be  quoted  at  large.^  "  Marriage  being 
entirely  a  personal,  consensual  contract,  it  may  be 
thought  that  the  Lex  loci  must  be  resorted  to  in  ex- 
pounding every  question,  that  arises  relative  to  it.  But 
it  will  be  observed,  that  marriage  is  a  contract  sui  gene- 
ris,  and  differing,  in  some  respects,  from  all  other  con- 
tracts ;  so  that  the  rules  of  law,  which  are  applicable 
in  expounding  and  enforcing  other  contracts,  may  not 
apply  to  this.  The  contract  of  marriage  is  the  most 
important  of  all  human  transactions.  It  is  the  very 
basis  of  the  whole    fabric   of  civilized    society.     The 


'  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.   R.  63  ;  Lindo  v.  Belisa- 
rio,  1  Hajrrr.  Consist.  R.  231. 

2  1  Black.  Comm.  433. 

3  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.  R.  63  to  65. 

4  Lord  Robertson,  in  Fergusson  on  Marr.  and  Divorce,  397  to  399. 


196  CONFLICT    OF    LAWS.  [CH.  V. 

status  of  marriage  is  ju7is  gentium,  and  the  foundation 
of  it,  like  that  of  all  other  contracts,  rests  on  the  con- 
sent of  parties.  But  it  differs  from  other  contracts  in 
this,  that  the  rights,  obligations,  or  duties,  arising  from 
it,  are  not  left  entirely  to  he  regulated  by  the  agree- 
ments of  parties,  but  are,  to  a  certain  extent,  matters 
of  municipal  regulation,  over  which  the  parties  have  no 
control,  by  any  declaration  of  their  will.  It  confers 
the  status  of  legitimacy  on  children  born  in  wedlock, 
with  all  the  consequential  rights,  duties,  and  privileges, 
thence  arising ;  it  gives  rise  to  the  relations  of  consan- 
guinity and  affinity  ;  in  short,  it  pervades  the  whole 
system  of  civil  society.  Unlike  other  contracts,  it  can- 
not, in  general,  amongst  civilized  nations,  be  dissolved 
by  mutual  consent ;  and  it  subsists  in  full  force,  even 
although  one  of  the  parties  should  be  forever  rendered 
incapable,  as  in  the  case  of  incurable  insanity,  or  the 
like,  from  performing  his  part  of  the  mutual  contract. 

§  110.  "No  wonder,  that  the  rights,  duties,  and  obli- 
gations, arising  from  so  important  a  contract,  should 
not  be  left  to  the  discretion  or  caprice  of  the  contract- 
ing parties,  but  should  be  regulated,  in  many  important 
particulars,  by  the  laws  of  every  civilized  country. 
And  such  laws  must  be  considered  as  forming  a  most 
essential  part  of  the  public  law  of  the  country.  As  to 
the  constitution  of  the  marriage,  as  it  is  merely  a  per- 
sonal, consensual  contract,  it  must  be  valid  everywhere, 
if  celebrated  according  to  the  Lex  loci ;  but,  with  regard 
to  the  rights,  duties,  and  obligations,  thence  arising,  the 
law  of  the  ,domicil  must  be  looked  to.  It  must  be  ad- 
mitted, that  in  every  country,  the  laws  relative  to  di- 
vorce are  considered  as  of  the  utmost  importance,  as 
public  laws  affecting  the  dearest  interest  of  society. 

§  111.  "It  is  said,  that, in  every  contract  the  parties 


CH.  v.]  MARRIAGE.  197 

bind  themselves,  not  only  to  what  is  expressly  Stipu- 
lated, but  also  to  what  is  implied  in  the  nature  of  the 
contract ;  and  that  these  stipulations,  whether  express 
or  implied,  are  not  alfected  by  any  subsequent  change 
of  domicil.  This  may  be  true  in  the  general  case,  but, 
as  already  noticed,  marriage  is  a  contract  stii  generis,  and 
the  rights,  duties,  and  obligations  which  arise  out  of  it, 
are  matters  of  so  much  importance  to  the  well-being  of 
the  State,  that  they  are  regulated,  not  by  the  private 
contract,  but  by  the  public  laws  of  the  State,  which  are 
imperative  on  all,  who  are  domiciled  within  its  territo- 
ry. If  a  man  in  this  country  were  to  confine  his  wife 
in  an  iron  cage,  or  to  beat  her  with  a  rod  of  the  thickness 
of  the  Judge's  finger,  would  it  be  a  justification  in  any 
court,  to  allege  that  these  were  powers  which  the  law 
of  England  conferred  on  a  husband,  and  that  he  was 
entitled  to  the  exercise  of  them,  because  his  marriage 
had  been  celebrated  in  that  country  ? 

§  112.  "In  short,  although  a  marriage,  which  is  con- 
tracted according  to  the  Lex  loci,  will  be  valid  all  the 
world  over,  and  although  many  of  the  obligations  inci- 
dent to  it  are  left  to  be  regulated  solely  by  the  agree- 
ment of  the  parties ;  yet  many  of  the  rights,  duties, 
and  obligations,  arising  from  it,  are  so  important  to  the 
best  interests  of  morality  and  good  government,  that 
the  parties  have  no  control  over  them ;  but  they  are 
regulated  and  enforced  by  the  public  law,  which  is  im- 
perative on  all,  who  are  domiciled  within  its  jurisdic- 
tion, and  which  cannot  be  controlled  or  affected  by  the 
circumstance,  that  the  marriage  was  celebrated  in  a 
country  where  the  law  is  different.  In  expounding  or 
enforcing  a  contract  entered  into  in  a  foreign  coun- 
try, and  executed  according  to  the  laws  of  that  coun- 
try, regard  will  be  paid  to  the  Lex  hci,  as  the   contract 

17* 


198  CONFLICT   OF   LAWS.  [CH.  V. 

is  evidence,  that  the  parties  had  in  view  the  law  of  the 
country,  and  meant  to  be  bound  by  it.  But  a  party, 
who  is  domiciled  here,  cannot  be  permitted  to  import 
into  this  country  a  law  peculiar  to  his  own  case,  and 
which  is  in  opposition  to  those  great  and  important 
public  laws,  which  our  Legislature  has  held  to  be  essen- 
tially connected  with  the  best  interests  of  society."  ^ 

§  113.  The  general  principle  certainly  is,  (as  we 
have  already  seen,)  that  between  persons,  sid  juris, 
marriage  is  to  be  decided  by  the  law  of  the  place, 
where  it  is  celebrated.^  If  valid  there,  it  is  valid 
everywhere.  It  has  a  legal  ubiquity  of  obligation.  If 
invalid  there,  it  is  equally  invalid  everywhere.^  The 
grounds  of  this  doctrine  we  shall  have  occasion  pre- 
sently to  consider.'*  It  is  only  necessary  here  to  state, 
that  it  has  received  the  most  deliberate  sanction  of  the 
English  and  American  Courts.^ 

§  113  a.  The  most  prominent,  if  not  the  only  known 
exceptions  to  the  rule,  are  those  marriages  involving 


1  Lord  Robertson  in  Fergusson  on  Marr.  and  Divorce,  397  to  399. 

2  Ante,  ^  80,  81.  See  Kent  v.  Burgess,  11  Simons,  R.  361  ;  Patter- 
son V.  Gaines,  6  How.  U.  S.  R.  550. 

3  Ryan  v.  Ryan,  2  Phill.  Eccl.  R.  332  ;  Herbert  v.  Herbert,  3  Phill. 
Eccl.  R.  58  ;  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.  R.  54  ;  Ruding 
V.  Smith,  2  Hagg.  Consist.  R.  390,  391 ;  Scrimshire  v.  Scrimsliire, 
2  Hagg.  Consist.  R,  395  ;  Munro  v.  Saunders,  6  Bligh,  R.  473,  474  ; 
Ilderton  u.  Ilderton,  2  H.  BI.  145;  Middleton  i'.  Janverin,  2  Hagg.  R. 
437  ;  Laeon  v.  Higgins,  3  Starkie,  R.  178;  2  Kent,  Coram.  Lect.  26, 
p.  91,  92,  93,  3d  edit. ;  Mcdway  v.  Needham,  16  Mass.  R.  157 ;  Putnam 
V.  Putnam,  8  Pick.  R.  433;  West  Cambridge  v.  Lexington,  1  Pick.  R. 
506  ;  I  Burge,  Comm.  on  Col.  and  For.  Law,  eh.  5,  ^  3,  p.  184  to  p.  201  ; 
2  Kaims  on  Eq.  B.  3,  ch.  8,  §  1  ;  Kent  v.  Burgess,  11  Simons,  R.  361. 

4  Post,  ^121.     See  also  ante,  ^  80. 

5  See  cases  cited  supra,  ^  113,  note  1;  Sutton  v.  Warren,  10  Mete. 
451  ;  Phillips  v.  Gregg,  10  Watts,  158  ;  Morgan  v.  McGhee,  5  Humph- 
reys, R.  13 ;  State  v.  Patterson,  2  Iredell,  346 ;  post,  ^  122  to  i^*  124. 


CH.  v.]  MARRIAGE.  199 

polygamy  and  incest ;  those  positively  prohibited  by 
the  public  law  of  a  country,  from  motives  of  policy ; 
and  those  celebrated  in  foreign  countries  by  subjects, 
entitling  themselves  under  special  circumstances  to  the 
benefit  of  the  laws  of  their  own  country.^  Cases,  illus- 
trative of  each  of  these  exceptions,  have  been  already 
alluded  to.- 

§  114.  In  respect  to  the  first  exception,  that  of  mar- 
riages, involving  polygamy  and  incest,  Christianity  is 
understood  to  prohibit  polygamy  and  incest ;  and  there- 
fore no  Christian  country  would  recognize  polygamy, 
or  incestuous  marriages.^  But  when  we  speak  of  in- 
cestuous marriages,  care  must  be  taken  to  confine  the 
doctrine  to  such  cases  as  by  the  general  consent  of  all 
Christendom  are  deemed  incestuous.  It  is  difficult  to 
ascertain  exactly  the  point  at  which  the  law  of  nature, 
or  the  authority  of  Christianity  ceases  to  prohibit  mar- 
riages between  kindred ;  and  Christian  nations  are  by 
no  means  generally  agreed  on  this  subject.'*  In  most 
of  the  countries  of  Europe,  in  which  the  canon  law 
has  had  any  authority  or  influence,  marriages  are  pro- 
hibited between  near  relations  by  blood,  or  by  marriage, 
or  in  other  words,  by  consanguinity,  or  by  affinity; 
and  the  canon  and  the  common  law  seem  to  have  made 
no  distinction  on  this  point  between  consanguinity,  or 
relation  by  blood,  and  affinity,  or  relation  by  marriage. 


1  1  Burge,  Comm.  on  Col.  and  For.  Law,  ch.  5,  ^  3,  p.  188. 

2  Ante,  ^  89. 

3  Paley  on  Moral  Phil.  B.  3,  ch.  6  ;  2  Kent,  Comm.  Lect,  26,  p.  81, 
3d  edit.  ;  1  Bl.  Comm.  43G.  See  Grotius,  B.  2,  ch.  5,  §  9  ;  Greenwood 
V.  Curtis,  G  Mass.  R.  378;  Sutton  v.  Warren,  10  Mete.  451  ;  1  Burge, 
Comm.  on  Col.  and  For.  Law,  P.  1,  ch.  5,  ^  3,  p.  188,  189,  190 ;  Hube- 
rus,  Lib.  1,  tit.  3,  ^  8.     See  Swift  v.  Kelly,  3  Knapp,  R.  258,  279. 

4  Grolius,  B.  2,  ch.  5,  §  12,  13,  14.  See  1  Brown,  Civ.  Law,  61  to 
65  ;  1  Burge,  Comm.  on  Col.  and  For.  Law,  ch.  5,  ^  3,  p.  188. 


200  CONFLICT    OF   LAWS.  [CH.  V. 

although  there  certainly  is  a  very  material  difference 
in  the  cases.^  Marriages  between  relations  by  blood, 
in  the  lineal  ascending  or  descending  line,  are  univer- 
sally held  by  the  common  law,  the  canon  law,  and  the 
civil  law,  to  be  unnatural  and  unlawful.^     So  are  mar- 


•  2  Kent,  Cornm.  Lect.  26,  p.  81,  82,  3d  edit.  ;  1  Bl.  Comm.  434.  See 
on  this  subject  The  London  Quarterly  Law  Magazine  for  May,  1839,  Vol. 
21,  p.  371  to  p.  382,  The  London  Monthly  Law  Magazine  for  May,  1840, 
Vol.  7,  p.  330,  332,  and  The  London  Legal  Observer  for  January,  1840. 

2  Wightman  v.  Wightman,  4  Johns.  Ch.  R.  343;  2  Kent,  Comm.  Lect. 
26,  p.  81  to  p.  84,  3d  edit.  ;  Harrison  v.  Barwell,  Vaughan,  R.  206; 
S.  C.  2  Vent.  R.  9  ;  Grotius,  B.  2,  ch.  5,  §  12,  n.  1,  2  ;  Id.  §  13,  n.'4 ; 
Id.  §  14,  n.  1 ;  2  Heinec.  Elem.  Juris.  Natur.  B.  2,  ch.  2,  §  40,  by  Turn- 
bull  ;  1  Burge,  Comment,  on  Col.  and  For.  Law,  P.  1,  ch.  5,  ^  1,  p.  137, 
146,  147;  Com.  Dig.  Baron  and  Feme,  (B)  4  ;  2  Inst.  693.  —  Lord 
Brougham,  in  VVarrender  v.  Warrender,  (9  Bligh,  R.  112,  113,)  speaking 
on  this  subject,  said  :  "  But  this  rule  extends,  I  apprehend,  no  farther  than 
to  the  ascertaining  of  the  validity  of  the  contract,  and  the  meaning  of  the 
parties,  that  is,  the  existence  of  the  contract  and  its  construction.  If,  in- 
deed, there  go  two  things  under  one  and  the  same  name  in  different  coun- 
tries ;  if  that  which  is  called  marriage  is  of  a  different  nature  in  each ; 
there  may  be  some  room  for  holding,  that  we  are  to  consider  the  thing,  to 
which  the  parties  have  bound  themselves,  according  to  its  legal  accepta- 
tion in  the  country,  where  the  obligation  was  contracted.  But  marriage 
is  one  and  the  same  thing  substantially  all  the  Christian  world  over.  Our 
whole  law  of  marriage  assumes  this ;  and  it  is  important  to  observe,  that 
we  regard  as  wholly  a  different  thing,  a  different  status,  from  Turkish  or 
other  marriages  among  infidel  nations,  because  we  clearly  never  should 
recognize  the  plurality  of  wives,  and  consequent  validity  of  second  mar- 
riages standing  the  first,  which  second  marriages  the  laws  of  those  coun- 
tries authorize  and  validate.  This  cannot  be  put  upon  any  rational 
ground,  except  our  holding  the  infidel  marriage  to  be  something  different 
from  the  Christian,  and  our  also  holding  Christian  marriage  to  be  the 
same  everywhere.  Therefore,  all,  that  the  Courts  of  one  country  have  to 
determine,  is,  whether  or  not  the  thing  called  marriage,  that  known  rela- 
tion of  persons,  that  relation,  which  those  courts  are  acquainted  with,  and 
know  how  to  deal  with,  has  been  validly  contracted  in  the  other  country, 
where  the  parties  professed  to  bind  themselves.  If  the  question  is  an- 
swered in  the  affirmative,  a  marriage  has  been  had  ;  the  relation  has  been 
constituted;  and  those  Courts  will  deal  with  the  rights  of  the  parties  under 
it,  according  to  the  principles  of  the  municipal  law  which  they  adminis- 
ter."    See  also  Id.  114. 


CH.  v.]  MARRIAGE.  201 

I'iages  between  brother  and  sister  in  the  collateral  line, 
whether  of  the  whole  blood,  or  of  the  half  blood ; '  and, 
indeed,  such  marriages  seem  repugnant  to  the  first 
principles  of  social  order  and  morality.  It  has  been 
well  remarked  by  Mr.  Chancellor  Kent,  that  it  will  be 
found  difficult  to  carry  the  prohibition  farther  in  the 
collateral  line  than  the  first  degree,  (that  is,  beyond 
brother  and  sister,)  unless  where  the  legislature  have 
expressly  provided  such  a  prohibition.^     Grotius  has 


'  2  Kent,  Comm.  Lect.  26,  p.  83,  84,  3d  edit.  See  also  Butler  v.  Gas- 
trill,  Gilb.  Eq.  R.  156  ;  1  Burge,  Comm.  on  Col.  and  For.  Law,  P.  1, 
ch.  6,  ^  1,  p.  127  ;  Id.  ^  3,  p.  188  ;  Grotius  de  Jure  Belli,  Lib.  2,  ch.  5, 
^  12,  n.  2;  Id.  §  13,  n.  3  to  n.  7. 

2  Wightman  v.  Wightman,  4  Johns.  Ch.  R.  343.  —  The  whole  remarks 
of  the  learned  Chancellor  on  this  occasion  deserve  to  be  cited  at  large. 
"  Besides  the  case  of  lunacy,  now  before  me,  I  have,  hypothetically,  men- 
tioned the  case  of  a  marriage  between  persons  in  the  direct  lineal  line  of 
consanguinity,  as  clearly  unlawful  by  the  law  of  the  land,  independent  of 
any  church  canon,  or  of  any  statute  prohibition.  That  such  a  marriage  is 
criminal  and  void  by  a  Law  of  Nature,  is  a  point  universally  conceded. 
And,  by  the  Law  of  Nature,  I  understand,  those  fit  and  just  rules  of  con- 
duct which  the  Creator  has  prescribed  to  man,  as  a  dependent  and  social 
being  ;  and  which  are  to  be  ascertained  from  the  deductions  of  right  rea- 
son, though  they  may  be  more  precisely  known,  and  more  explicitly  de- 
clared by  Divine  Revelation.  There  is  one  other  case,  in  which  the  mar- 
riage would  be  equally  void,  causa  consanguinitatis,  and  that  is  the  case 
of  brother  and  sister;  and  since  it  naturally  arises,  in  the  consideration  of 
this  subject,  I  will  venture  to  add  a  few  incidental  observations.  I  am 
aware,  that  when  we  leave  the  lineal  line  and  come  to  the  relation  by 
blood  or  affinity  in  the  collateral  line,  it  is  not  so  easy  to  ascertain  the  exact 
point  at  which  the  Natural  Law  has  ceased  to  discountenance  the  union. 
Though  there  may  be  some  difference  in  the  theories  of  different  writers 
on  the  Law  of  Nature,  in  regard  to  this  subject,  yet  the  general  current 
of  authority,  and  the  practice  of  civilized  nations,  and  certainly  of  the 
whole  Christian  world,  have  condemned  the  connection  in  the  second 
case,  which  has  been  supposed,  as  grossly  indecent,  immoral,  and  in- 
cestuous, and  inimical  to  the  purity  and  happiness  of  families,  and  as 
forbidden  by  the  Law  of  Nature."  (Grotius  de  Jure,  &c.  lib.  2,  ch.  5, 
s.  13  ;  Puffend.  de  Jure,  Gent.  lib.  6,  c.  1,  s.  34  ;  Id.  de  Off.  Horn.  lib.  2, 
c.  2,  s.  8  ;    Ileinecc.  Oper.  torn.  8,  pars  2,  p.  203  ;  Taylor's  Elem.  Civ. 


202  CONFLICT    OF   LAWS.  [CH.  V. 

expressed  an  equally  strong  opinion  upon  the  intrinsic 
difficulty  of.  the  subject.     De  conjiigiis  eoriim,  qui  san- 


Law,  326  ;  Montesq.  Esp.  des  Loix.  liv.  26,  c.  14  ;  Paley's  Moral  Philo- 
sophy, B.  3,  p.  3,  c.  5.)  We,  accordingly,  find  such  connections  expressly 
prohibited  in  different  Codes.  (Dig.  lib.  23,  lit.  2,  1.  18,  lib.  23,  tit.  2,  1.  14, 
s.  2,  lib.  45,  tit.  1,  1.  35,  s.  1 ;  Just.  Inst.  lib.  1,  tit.  10  ;  De  Nuptiis.  Vin- 
nius,  h.  t,  ;  Heinecc.  ubi  supra.  Code  Civile  de  France,  n.  161,  162,  163, 
164;  Inst,  of  Menu,  by  Sir  William  Jones,  c.  3,  s.  5.  Staunton' Ta- 
Tsing-Leu-Lee,  s.  107,  108  ;  Sale's  Coran,  c.  4  ;  Marsden's  Sumatra,  p. 
194,  221.)  And  whatever  may  have  been  the  practice  of  some  ancient 
nations,  originating,  as  Montesquieu  observes,  in  the  madness  of  supersti- 
tion, the  objection  to  such  marriages  is,  undoubtedly,  founded  in  reason 
and  nature.  It  grows  out  of  the  institutions  of  families,  and  the  rights 
and  duties,  habits  and  affections,  flowing  from  that  relation,  and  which 
may  justly  be  considered  as  part  of  the  Law  of  our  Nature,  as  rational  and 
social  beings.  Marriages  among  such  near  relations  would  not  only  lead 
to  domestic  licentiousness,  but,  by  blending  in  one  object  duties  and  feel- 
ings incompatible  with  each  other,  would  perplex  and  confound  the  duties, 
habits,  and  affections  proceeding  from  the  family  state,  impair  the  percep- 
tion, and  corrupt  the  purity  of  moral  taste,  and  do  violence  to  the  moral 
sentiments  of  mankind.  Indeed,  we  might  infer  the  sense  of  mankind,  and 
the  dictates  of  reason  and  nature,  from  the  language  of  horror  and  detest- 
ation, in  which  such  incestuous  connections  have  been  reprobated  and 
condemned  in  all  ages.  (Plato  de  Leg.  lib.  8  ;  Cic.  Orat.  pro  Mil.  27 ; 
Hermion.  in  Eurip.  Androm.  v.  175  ;  Byblis.  Ovid.  Met.  lib.  9  ;  Tacit. 
Ann.  lib.  12,  c.  4  ;  Vel.  Paterc.  Aist.  lib.  2,  ch.  45  ;  Corn.  Nep.  Excel. 
Imp.  Prefat.)  The  general  usage  of  mankind  is  sufficient  to  settle  the 
question,  if  it  were  possible  to  have  any  doubt  on  the  subject ;  and  it  must 
have  proceeded  from  some  strong  uniform  and  natural  principle.  Prohibi- 
tions of  the  Natural  Law  are  of  absolute,  uniform,  and  universal  obliga- 
tion. They  become  rules  of  Common  Law,  which  is  founded  in  the  com- 
mon reason  and  acknowledged  duty  of  mankind,  sanctioned  by  immemorial 
usage,  and,  as  such,  are  clearly  binding.  To  this  extent,  then,  I  appre- 
hend it  to  be  within  the  power  and  within  the  duty  of  this  Court,  to  en- 
force the  prohibition.  Such  marriages  should  be  declared  void,  as  contra 
bonos  mores.  But  as  to  the  other  collateral  degrees,  beyond  brother  and 
sister,  I  should  incline  to  the  intimation  of  the  Judges  in  Harrison  i'.  Burwell, 
(Vaugh.  R.  206;  S.  C.  2  Vent.  9,)  that  as  we  have  no  statute  on  the 
subject,  and  no  train  of  common  law  decisions,  independent  of  any  statute 
authority,  the  Levitical  degrees  are  not  binding,  as  a  rule  of  municipal 
obedience.  Marriages  out  of  the  lineal  line,  and  in  the  collateral  line, 
beyond  the  degree  of  brothers  and  sisters,  could  not  well  be  declared  void, 
as  against  the  first  principles  of  society.     The  laws  or  usages  of  all  the 


CH.  v.]  MARRIAGE.  203 

guine  aid  affinitate  satis  gravis  est  questio,  et  non  raro  magnis 
moiibiis  agitata.  Nam  caiisas  certas  ac  naturales,  cur  talia 
conjiigia,  ita  lit  legibiis  aut  morihus  vetantiir,  illicita  sint,  as- 
signare,  qui  volucrit,  experiendo  discet,  quam  id  sit  difficile, 
imo  prcEstari  non  possit} 

§  114:  a.  At  all  events,  in  other  cases  of  consangui- 
nity not  in  the  lineal  line,  or  in  the  first  degree  of  the 
collateral  line,  there  is  much  room  for  diversity  of  opi- 
nion and  judgment  among  jurists,  and  of  practice  among 
nations.  Grotius  has  taken  notice  of  this  distinction, 
and  says ;  Quw  manifesta  expressio  ostendcre  videtiir  dis- 
crimen,  quod  est  inter  Jios  et  alios  remotiores  gradus.^  Thus, 
he  says,  that  it  is  forbidden  to  marry  an  aunt  on  the 
father's  side ;  but  not  the  daughter  of  a  brother,  who  is 
of  the  same  degree.  JVam  diicere  amitam  agnatamvetitum  est. 
At  filiam  fratris,  qui  par  est  gradus,  duccrevetitum  non  est? 
In  England  it  has  been  declared  by  statute,  that  all  persons 
may  lawfully  marry,  but  such  as  are  prohibited  by  God's 
Law,  that  is,  such  as  are  within  the  Levitical  degrees.^ 


nations,  to  whom  I  have  referred,  do,  indeed,  extend  the  prohibition  to 
remoter  degrees  ;  but  this  is  stepping  out  of  the  family  circle  ;  and  I  can- 
not put  the  prohibition  on  any  other  ground  than  positive  institution. 
There  is  a  great  diversity  of  usage  on  this  subject.  Neque  teneo,  neque 
dicta  refello.  The  limitation  must  be  left,  until  the  legislature  thinks  pro- 
per to  make  some  provision  in  the  case,  to  the  injunctions  of  religion,  and 
to  the  control  of  manners  and  opinion."  See  also  2  Kent,  Comm.  Lect. 
26,  p.  83,  84,  3d  edit.  ;  1  Burge,  Comment,  on  Col.  and  For.  Law,  P.  1, 
eh.  5,  §  1,  p.  188. 

1  Grotius,  de  Jure  Belli,  Lib.  2,  ch.  5,  §  12. 

2  Grotius,  de  Jure  Belli,  B.  2,  ch.  5,  \  14,  n.  1. 

3  Ibid. 

4  Com.  Dig.  Baron  and  Feme,  B.  2,  B.  4  ;  1  Black.  Comm.  435  ;  Le- 
viticus, ch.  18.  Mr.  Burge  states  the  prohibitions  in  England  arising 
from  the  Levitical  law  in  the  following  terms.  "  Cognatio,  consanguinity, 
or  relationship  by  blood,  and  affinitas,  affinity,  or  relationship  by  marriage, 
constitute  impediments  to  a  lawful  marriage.     Marriages  between  parties 


204  CONFLICT    OF   LAWS.  [CH.  V. 

Under  this  general  provision,  it  has  been  held,  that  a 
marriage  between  an  uncle  and  a  niece  by  blood  is  in- 
cestuous, (it  being  in  the  third  degree,)  upon  the  ground 
that  it  is  against  the  law  of  God,  and  sound  morals ; 
that  it  would  tend  to  endless  confusion ;  and  that  the 
sanctity  of  private  life  would  be  polluted,  and  the  proper 
freedom  of  intercourse  in  families  would  be  destroyed, 
if  such  practices  were  not  discouraged  in  the  strongest 


related  by  blood  or  by  affinity,  in  the  direct,  ascending  or  descending  line,  in 
infinitum,  are  prohibited  by  the  civil  and  canon  law.  This  prohibition 
prevents  that  confusion  of  civil  duties,  which  would  be  the  necessary 
results  of  such  marriages.  The  codes  of  Europe  concur  in  this  pro- 
hibition. In  the  collateral  line,  the  prohibition  is  confined  to  those,  who 
stand  in  certain  degrees  of  consanguinity  or  affinity  to  each  other.  In 
the  computation  of  these  degrees  there  is  a  difference  between  the  civil 
and  canon  law.  Thus,  those,  who,  according  to  the  civil  law,  are  in  the 
second  degree,  are  placed  by  the  canon  law  in  the  first  degree  ;  and  those 
who  are  placed  by  the  civil  law  in  the  fourth  degree,  are  by  the  canon 
law  placed  in  the  second  degree.  The  degrees  prohibited  by  the  Leviti-  f 
cal  law  are  all  within  the  fourth  degree  of  consanguinity,  according  to  the 
computation  of  the  civil  law  ;  all  collaterals,  therefore,  in  that  degree,  or 
beyond  it,  may  marry.  First  cousins  arc  in  the  fourth  degree  by  the  civil 
law,  and,  therefore,  may  marry.  Nephew  and  great  aunt,  or  niece  and 
great  uncle,  are  also  in  the  fourth  degree  and  may  intermarry  ;  and  though 
a  man  may  not  marry  his  grandmother,  it  is  certainly  true,  that  he  may 
marry  her  sister.  All  these  fourth  degrees  in  the  civil  law  are  second 
degrees  in  the  canon  law.  By  the  civil  law,  persons  in  the  fourth  de- 
gree might  intermarry  with  each  other.  Such  is  the  law  of  England, 
Scotland,  Ireland,  and  the  Colonies."  1  Burge,  Comment,  on  Col.  and 
For.  Law,  P.  1,  ch.  5,  ^  1,  p.  146,  147.  There  seems  to  be  a  mistake  of 
the  press  in  one  part  of  the  passage  of  Mr.  Burge's  remarks,  as  to  the  dif- 
ference between  the  civil  law  and  the  canon  law.  The  latter  counted 
the  degrees  only  up  to  the  common  ancestor  ;  the  former  also  down  to  the 
Propositus.  So,  that  the  first  degree  in  the  canon  law  was  the  second  in 
the  civil  law,  and  the  second  in  the  canon  law  was  the  fourth  in  the  civil 
law.  2  Black.  Comm.  224;  Ersk.  Instit.  B.  1,  tit.  6,  ^  8  ;  2  Burn, 
Eccles.  Law,  tit.  Marriage,  I.  See  also  the  London  Monthly  Law  Maga- 
zine for  Feb.  1840,  Vol.  7,  p.  44  to  p.  46.  Mr.  Burge's  Text  reverses 
the  statement.  1  Burge,  Comment,  on  Col.  and  For,  Law,  P.  1 ,  ch.  5,^1, 
p.  147. 


CH.  v.]  MARRIAGE.  205 

manner.^  Yet  Grotius  not  only  deems  such  a  marriage 
perfectly  unexceptionable  ;  but  adds,  that  there  are  ex- 
amples of  it  among  the  Hebrews."  [And  in  America, 
such  a  marriage  has  been  held  not  absolutely  void,  but 
only  voidable  during  the  lives  of  the  parties.  After  the 
death  of  either,  its  validity  cannot  be  called  in  question.^] 
But  marriages  between  first  cousins  by  blood,  or  cou- 
sins-german  being  in  the  fourth  degree,  are,  according  to 
English  jurisprudence,  lawful ;  so  that  the  prohibitions 
in  the  collateral  line  stop  at  the  third  degree.^  The 
same  rule,  as  to  the  marriage  of  first  cousins,  has  been 
adopted  by  the  Protestant  countries  of  Europe.  But 
the  canon  law  prohibited  such  marriages,  although  a 
dispensation  might  be  obtained  thereof.^  [The  same 
rule  has  been  applied  to  the  marriage  of  a  man  and 
his  mother's  sister.  Such  a  marriage  is  not  incestuous 
by  the  law  of  nature,  nor  was  it  void  by  the  law  of 
England,  before  the  statute  6th  William  Fourth,  c.  54, 
but  only  voidable  by  process  in  the  Ecclesiastical  Court.^] 
Incestuous  marriages  by  the  English  law  are  not,  how- 
ever, deemed  by  the  common  law  absolutely  void ;  but 
they  are  voidable  only  during  the  lives  of  the  parties ; 
and  if  not  so  avoided  during  their  lives,  they  are  deemed 
valid  to  all  intents  and  purposes.' 


'  Burgess  v.  Burgess,  1  Hagg.  Consist.  R.  384,  386  ;  1  BI.  Comm.  435  ; 
Butler  V.  Gastrill,  Gilb.  Eq.  R.  156,  158;  2  Kent,  Cora.  Lect.  26,  p.  84, 
3d  edit.  ;  Com.  Dig.  Bm-on  and  Feme,  B.  4. 

2  Grotius,  De  Jure  Belli,  B.  2,  ch.  5,  §  14,  n.  1. 

3  Bonham  v.  Badgley,  2  Gilman,  622. 

4  1  Black.  Comm.  435  ;  Burn,  Eccles.  Law,  tit.  Marriage,  I.  ;  Harri- 
son V.  Burvvell,  Vaughan,  R.  219;  S.  C.  2  Vent.  9  ;  2  Instit.  084. 

•^  Burn,  Eccles.  Law,  tit.  Marriage,  L  ;  1  Burge,  Comm.  on  Col.  and 
For.  Law,  P.  1,  ch.  5,  ^  1,  p.  147,  148. 

6  Sutton  V.  Warren,  10  Mete.  451.  See  Poynter  on  Marriage,  86,  120  ; 
Regina  v.  Wye,  7  Ad.  &  Ell.  771. 

7  1  Black.  Comm.  434,  435  ;  [Reginar.  Wye,  7  Ad.  &  Ell.  761  ;  S.  C. 

CONFL.  18 


206  CONFLICT    OF   LAWS.  [CH.    V. 

§  115.  Hitherto  we  have  been  speaking  of  cases  of 
relation  by  consanguinity,  between  which  and  cases  of 
relation  by  affinity,  there  seems  to  be  a  clear  and  just 
moral  difference.  The  English  law,  however,  has  treated 
both  classes  of  cases  as  falling  within  the  same  predica- 
ment of  prohibition  by  the  Levitical  law.  Hence  it  has 
been  there  held,  that  a  marriage  between  a  father-in- 
law  and  the  daughter  of  his  first  wife  by  a  former  mar- 
riage is  incestuous  and  unlawful ;  i  and,  indeed,  there 
seems  something  repugnant  to  social  feelings  in  such 
marriages.  The  prohibition  has  also  been  extended  in 
England  to  the  marriages  between  a  man  and  the  sister 
of  his  former  deceased  wife  ;  but  upon  what  ground  of 
Scriptural  authority  it  has  been  thought  very  difficult 
to  affirm.^     [The  rule  is,  however,  fully  and  deliberately 


3  Nev.  &  Per.  13  ;  Sutton  v.  Warren,  10  Mete.  451.]  By  a  recent  Act 
of  Parliament,  Act  of  5th  and  6th  William  Fourth,  ch.  54,  (1835,)  all  fu- 
ture incestuous  marriages  are  declared  to  be  utterly  void,  and  not  merely 
voidable.  [And  see  the  late  case  of  Regina  v.  Chadvvick,  11  Ad.  &  Ell. 
N.  S.  173,  S.  C.  2  Cox,  C.  C.  381.] 

1  Blackmore  and  Thorp  v.  Brider,  2  Hagg.  Consist.  R.  393,  note;  S.C. 
2  Phil.  Eccles.  R.  359. 

2  Burn,  Eccles.  Law,  tit.  Marriage,  I.  ;  1  Black.  Coram.  434,  435, 
Christian's  note  (2),  citing  Gibson's  Codex,  412;  Harris  v.  Hicks,  Salk. 
548  ;  Hall  v.  Good,  Vaughan,  R.  302,  312;  Faremouth  v.  Watson,  1 
Phill.  Eccl.  R.  355;  Chick  v.  Rawsdale,  1  Curteis,  R.  34;  Com.  Dig. 
Baron  and  Feme,  B.  2,  B.  4  ;  2  Inst.  683  ;  Bac.  Abridg.  Marriage,  A. 
Lord  Chief  Justice  Vaughan,  in  delivering  the  opinion  of  the  Court  in 
Harrison  v.  Burwell,  (Vaughan,  R.  206  ;  S.  C.  2  Vent.  R.  9,)  says,  that  a 
man  is  prohibited  by  the  statute  32  Henry  8,  [ch.  38,]  to  marry  his  wife's  sis- 
ter. But  within  the  meaning  of  Leviticus,  (ch.  18,  v.  14,)  and  the  constant 
practice  of  the  Commonwealth  of  the  Jews,  a  man  was  prohibited  to  marry 
his  wife's  sister  only  during  her  life  ;  after  he  might.  So  the  text  is. 
A''aughan,  R.  241  ;  S.  C.  2  Vent.  17.  There  seems  a  discrepancy  be- 
tween what  is  here  said,  and  his  judgment  in  the  subsequent  case  of  Hall 
V.  Good,  Vaughan,  R.  302,  312,  320.  The  opinion  of  Lord  Chief  Justice 
Vaughan,  in  both  cases,  and  the  case  of  Butler  v.  Gastrill,  Gilbert,  Eq.  R. 
156,  are  full  of  learning  and  instruction  on  the  subject  of  the  canonical  and 


CH.  v.]  MARRIAGE.  207 

settled  in  that  country  ;  and  the  prohibition  is  extend- 
ed to  an  illegitimate  daughter,  as  well  as  legitimate 
daughter  of  the  first  wife's  parents'.]  In  many,  and 
indeed  in  most  of  the  American  States,  a  different  rule 
prevails,  and  marriages  between  a  man  and  the  sister  of 
his  former  deceased  wife  are  not  only  deemed  in  a  civil 
sense  lawful ;  but  are  deemed  in  a  moral,  religious,  and 
Christian  sense  lawful,  and  exceedingly  praiseworthy. 
In  some  few  of  the  States  the  English  rule  is  adopted. 
Upon  the  continent  of  Europe  most  of  the  Protestant 
countries  adopt  the  doctrine,  that  such  marriages  are 
lawful.^ 


ecclesiastical  prohibitions  of  marriage.  Dr.  John  H.  Livingston,  of  New 
Jersey,  has  written  an  elaborate  dissertation  upon  the  subject  of  the  mar- 
riage of  a  man  with  his  sister-in-law,  (wife's  sister,)  which  was  printed  at 
New  Brunswick,  N.  J.,  in  1816.  It  holds  the  doctrine,  that  such  mar- 
riages are  scripturally  incestuous.  The  opposite  doctrine  has  been  main- 
tained by  many  able  writers.  See  also  2  Kent,  Comm.  Lect.  26,  p.  85, 
3d  edit.  note.  There  are  some  very  able  articles  on  this  subject  in  the 
London  Quarterly  Law  Magazine  for  May,  1839,  Vol.  21,  p.  371  ;  in  the 
London  Legal  Observer  for  January,  1840  ;  and  in  the  London  Monthly 
Law  ]\Iagazine  for  May,  1840.  All  these  articles  are  designed  to  show, 
that  the  most  learned  writers  have  differed  upon  this  subject,  and  to  esta- 
blish, that  the  doctrine  is  ill-founded,  and  ought  to  be  abolished.  Grotius 
maintains  in  strong  terms,  that  there  is  no  foundation  for  the  prohibition. 
Cert6,  canonibus  antiquissimis,  qui  apostolici  dicunter,  qui  duas  sorores 
alteram  post  alteram  duxisset  aut  d.ds}.<pidsv,  id  est,  fratris  aut  sororis 
filiam,  tantum  a  clero  arcetur.  Grotius,  De  Jure  Belli,  B.  2,  ch.  5, 
§  14,  n.  2. 

1  Regina  v.  Chadwict,  11  Ad.  &  Ell.  N.  S.  173,  where  the  subject  is 
examined  at  much  length.  See  also  2  Cox,  C.  C.  381  ;  Ray  v.  Sher- 
wood, 1  Curt.  173  ;  1  Moore,  395. 

2  This  is  certainly  the  law  in  all  the  New  England  States,  and  in  New 
York.  Greenwood  v.  Curtis,  6  Mass.  R.  378,  379.  In  Virginia,  the 
English  rule  prevails.  Commonwealth  v.  Ferryman,  2  Leigh,  R.  717  ; 
2  Kent,  Comm.  Lect.  36,  p.  85,  note  (a).  Dr.  Jeremy  Taylor  and  Sir 
William  Jones  both  contend,  that  the  Levitical  degrees  do  not  by  any  law 
of  God  bind  Christians  to  their  observation.  See  London  Quart.  Law  Maga- 
zine, Vol.  21,  p.  373,  374.  In  Prussia,  Saxony,  Hanover,  Baden,  Mech- 
lenburgh,  Hamburg,  Denmark,  and  in  most  other  of  the  Protestant  States 


208  CONFLICT    OF   LAWS.  [CH.  V. 

§  116.  It  would  be  a  strong  point  to  put,  that  a  mar- 
riage, perfectly  valid  between  a  man  and  the  sister  of 
his  former  deceased  wife  in  New  England,  should  be 
held  invalid  in  Virginia,  or  in  England,  even  though 
the  parties  originally  belonged  to  or  were  born  in  the 
latter  Country  or  State.  But  as  to  persons  not  so  born 
or  belonging,  it  would  be  of  the  most  dangerous  conse- 
quence to  suppose,  that  the  Courts  of  either  of  them 
would  assume  the  liberty  to  hold  such  marriages  a  nul- 
lity, merely  because  their  own  jurisprudence  would  not, 
in  a  local  celebration  of  marriage  therein,  uphold  it. 
This  distinction  between  marriages  incestuous  by  the 
law  of  nature,  and  such  as  are  incestuous  by  the  posi- 
tive code  or  customary  law  of  a  State,  has  been  fully 
recognized  by  one  of  our  most  learned  American  Courts. 
"If"  (say  the  Court)  "a  foreign  State  allows  of  mar- 
riages incestuous  by  the  law  of  nature,  as  between  pa- 
rent and  child,  such  marriage  would  not  be  allowed  to 
have  any  validity  here.  But  marriages  not  naturally 
unlawful,  but  prohibited  by  the  law  of  one  State  and 
not  of  another,  if  celebrated  where  they  are  not  prohi- 
bited, would  be  holden  valid  in  a  State  where  they  are 
not  allowed.  As  in  this  State,  a  marriage  between  a 
man  and  his  deceased  wife's  sister  is  lawful ;  but  it  is 
not  so  in  some  States.  Such  a  marriage  celebrated 
here  would  be  held  valid  in  any  other  State,  and  the 
parties  entitled  to  the  benefits  of  the  matrimonial  con- 
tract." ^     Indeed,  in  the  diversity  of  religious  opinions 


of  Europe,  the  rule  prevails,  that  a  man  may  lawfully  marry  the  sister  of 
his  former  wife.  Id.  p.  376.  It  is  otherwise  in  Scotland.  Ersk.Inst.  B. 
I.  tit.  6,  §  9. 

J  Greenwood  v.  Curtis,  6  Mass.  R.  378,  379  ;  Medway  v.  Needham, 
16  Mass.  R.  157,  IGl  ;  Sutton  v.  Warren,  10  Mete.  451.  But  see  IIu- 
berus,  lib.  1,  tit.  3,  ^  8  ;  Wightman  v.  Wightman,  4  Johns.  Ch.  R.  343. 


CH.  v.]  MARRIAGE.    •  209 

in  Christian  countries,  a  large  space  must  be  allowed 
for  interpretation,  as  to  religious  duties,  rights,  and  so- 
lemnities.^ In  the  Catholic  countries  of  continental 
Europe,  there  are  many  prohibitions  of  marriage,  which 
are  connected  with  religious  canons  and  establishments ; 
and  in  most  countries  there  are  some  positive  or  cus- 
tomary prohibitions,  which  involve  peculiarities  of  reli- 
gious opinion,  or  of  conscientious  doubt.  It  would  be 
most  inconvenient  to  hold  all  marriages  celebrated  else- 
where void,  which  are  not  in  scrupulous  accordance 
with  the  local  institutions  of  a  particular  country. 

§  116  a.  In  the  cases  of  incest  hitherto  discussed,  it 
has  been  supposed,  that  the  parties  marrying  were 
either  natives  of,  or  actually  and  hond  fide  domiciled  in, 
the  country  where  the  marriage  was  celebrated.  But, 
suppose  the  case  of  a  marriage,  incestuous  by  the  law 
of  the  country,  where  the  parties  are  born,  or  are  lonci 
fide  domiciled,  and  without  changing  their  domicil,  for 
the  purpose  of  evading  that  law,  they  go  to  a  foreign 
country,  where  a  different  rule  prevails,  and  the  mar- 
riage, which  would  not  be  incestuous  by  its  laws,  is 
there  celebrated ;  and  the  parties  afterwards  return  to 
their  own  country.  Ought  such  a  marriage  to  be  held 
valid  in  such  country  ?  Huberus  has  put  the  very  case, 
and  held,  that  it  ought  not  there  to  be  held  valid.  If 
(says  he)  a  Brabanter,  who  should  marry  within  the 
prohibited  degrees,  under  a  dispensation  from  the  Pope, 
should  remove  here  (into  Holland)  the  marriage  would 
be  considered  valid.     Yet  if  a   Frisian   should   marry 


'  See  on  this  point,  2  Kent,  Comm.  Lect.  26,  p.  85,  3d  edit.  ;  Harrison 
V.  Burvvell,  Vaugh.  R.  206  ;  S.  C.  2  Vent.  R.  9  ;  Co.  Litt.  149  ;  Gro- 
tius,  B.  2,  ch.  5,  ^  12,  13,  14  ;  Rulherf.  Inst.  B.  1,  ch.  15,  §  10 ;  Wight- 
man  V.  Wightman,  4  John.  Ch.  R.  343. 

18* 


210  CONFLICT    OF   LAWS.  [CH.  V. 

the  daughter  of  his  brother  in  Brabant,  and  celebrate 
the  nuptials  there,  returning  here,  he  would  not  be  ac- 
knowledged as  a  married  man,  because  in  this  way  our 
laws  might  be  evaded  by  the  worst  examples.  Bra- 
hmitiis  iixore  diidd  dispensatione  Pontificis,  in  gradu  pro- 
Mhito,  si  Jmc  migret,  tolerdbitur.  Attamen,  si  Frisiiis  cum 
fratris  filid  se  conferat  in  Bi^abantiam,  ihiqiie  nuptias  cele- 
hret,  hue  reversiis  non  videtur  tolerandus  ;  qida  sic  Jus  nos- 
trum pessimis  exemplis  eluderetiirJ- 

§  117.  In  respect  to  the  second  exception,  that  of 
prohibitions  depending  upon  positive  law  of  a  particular 
country,^  they  of  course  can  apply  strictly  only  to  the 
subjects  of  that  country.  An  illustration  of  this  nature 
may  be  found  in  the  Civil  Code  of  France,  which  annuls 
marriages  by  Frenchmen,  in  foreign  countries,  who  are 


1  Huberus,  Lib.  1,  tit.  3,  §  8  ;  post,  §  123  ;  1  Burge,  Comm.  on  Col. 
and  For.  Law,  P.  l,ch.  5,  ^  1,  p.  147  ;  Id.  ^  3,  p.  188  to  p.  191.  — Mr. 
Burge  maintains  this  to  be  the  true  doctrine,  and  says  ;  "  The  law  which 
prohibits  persons  related  to  each  other  in  a  certain  degree  from  intermar- 
rying, and  declares  their  intermarriage  to  be  null,  imposes  on  them  a  per- 
sonal incapacity  quoad  that  act  ;  and  that  incapacity  must  continue  to  af- 
fect them,  so  long  as  they  retain  their  domicil  in  the  country  in  which 
that  law  prevails.  The  resort  to  another  country,  where  there  was  no  such 
prohibitory  law,  for  the  mere  purpose  of  evading  the  law  of  their  own 
country,  and  with  the  intention  of  returning  thither,  when  their  marriage 
had  taken  place,  cannot  be  considered  a  change  of  their  former  domicil,  or 
the  acquisition  of  a  domicil  in  the  country  to  which  they  had  resorted. 
They  must,  therefore,  be  regarded  as  still  subject  to  the  personal  incapa- 
city imposed  by  the  law  of  their  real  domicil."  See  post,  ^  123,  124. 
There  are  certain  parts  of  the  opinion  of  Sir  George  Hay,  in  Harford  v. 
Morris,  2  Hagg.  Consist.  R.  431,  432,  435,  from  which  it  may  fairly  be 
deduced  as  his  opinion,  that  the  law  of  the  place  of  marriage  was  the 
rule,  only  when  the  parties  were  domiciled  there  ;  and  that  if  they  went 
from  their  own  country  merely  to  celebrate  the  marriage  in  a  foreign 
country,  and  immediately  to  return  home,  the  law  of  such  country  would 
not  govern,  but  the  law  of  the  country  of  their  domicil.  Post,  ^  124, 
note. 

3  Ante,  ^  113  a. 


CH.  v.]  MAimiAGE.  211 

under  an  incapacity  by  the  laws  of  France.^  A  law  of 
a  similar  nature  may  be  found  in  the  Act  of  12  Geo.  3, 
ch.  11,  respecting  the  royal  family,  by  which  they  are 
prohibited  from  contracting  marriage,  unless  under  spe- 
cial circumstances,  pointed  out  in  the  act;~  and  the  pro- 
visions of  that  act  have  been  actually  applied  to  the 
case  of  a  foreign  marriage,  contracted  by  one  of  the 
royal  princes.  The  doctrine  of  the  English  courts,  al- 
ready alluded  to,^  in  regard  to  the  indissolubility  of  Eng- 
lish marriages  celebrated  in  England,  notwithstanding 
a  subsequent  divorce  in  a  foreign  country,  affords  a  still 
more  striking  illustration,  as  in  its  practical  effects,  it 
may  render  the  issue  of  a  second  marriage  illegitimate ; 
so  that  a  son,  the  issue  of  the  second  marriage  in  Scot- 
land may  be  legitimate  there  and  illegitimate  in  Eng- 
land ;  he  may  be  a  lawful  Scotch  Peer,  and  yet  lose  the 
English  estates,  which  support  his  peerage.'' 

§  118.  In  respect  to  the  third  exception,  that  of  mar- 
riages, contracted  and  celebrated  in  foreign  countries 
by  subjects  under  peculiar  circumstances,^  it  has  been 
deemed  to  arise  in  cases  of  a  sort  of  moral  necessity ; 
and  it  has  been  held  to  apply  to  persons,  residing  in 
foreign  factories,  in  conquered  places,  and  in  desert  or 
barbarous  countries,  or  in  countries  of  an  opposite  re- 
ligion, who  are  therefore  permitted,  from  necessity,  to 
contract  marriage  there  according  to  the  laws  of  their 


1  2  Kent,  Comm.  Lect.  26,  p.  93,  3d  edit.  ;  Code  Civil  of  France,  art. 
170  ;  Merlin,  R6pert,  Loi,  §  6,  n.  1. 

2  1  Black.  Comm.  226. 

3  Ante,  ^  88. 

4  See  Beazley  v.  Beazley,  3  Hagg.  Ecc.  R.  639  ;  Rex  v.  Lolley,  1  Russ. 
&  Ryan,  C.  C.  236  ;  Tovey  v.  Lindsay,  1  Dow,  724  ;  McCarthy  v.  De 
Caix,  cited  3  Hagg.  642,  note  ;  S.  C.  2  Russ.  &  Mylne,  R.  620. 

5  Ante,  ^  113  a. 


212  CONFLICT    OF   LAWS.  [CH.  V. 

own  country.  In  short,  wherever  there  is  a  local  ne- 
cessity from  the  absence  of  laws,  or  from  the  presence 
of  prohibitions  or  obstructions,  in  a  foreign  country,  not 
binding  upon  other  countries,  or  from  peculiarities  of 
religious  opinion  and  conscientious  scruples,  or  from 
circumstances  of  exemption  from  the  local  jurisdiction, 
marriages  will  be  allowed  to  be  valid  according  to  the 
law  of  the  native  or  of  fixed  actual  domicil.^ 

§  119.  The  doctrine,  upon  which  this  exception  from 
necessity  is  founded,  will  be  best  explained  by  a  quota- 
tion from  the  opinion  of  Lord  Stowell,  in  a  case,  already 
referred  to,  in  which  the  question  of  the  validity  of  a 
marriage  celebrated  at  the  Cape  of  Good  Hope  between 
English  subjects,  by  a  chaplain  of  the  British  forces, 
then  occupying  that  settlement  under  a  capitulation, 
recently  made,  came  before  him  for  decision.^  After 
citing  the  rule,  that  the  law  and  legislative  government 
of  every  dominion  equally  affect  all  persons  and  all  pro- 
perty within  the  limits  thereof,  and  remarking,  that  to 
such  a  proposition,  expressed  in  very  general  terms, 
only  general  truth  can  be  ascribed,  (for  it  is  undoubtedly 
subject  to  exceptions,)  he  proceeded  to  say,  that  even 
the  native  and  resident  inhabitants  are  not  all  brought 
strictly  within  the  pale  of  the  general  law.  And,  in 
illustration  of  this  remark,  he  referred  to  the  fact,  that 
even  in  England,  there  is  a  numerous  and  respectable 
body  (referring  to  the  Jews)  distinguished  by  great 


1  See  Ruding  v.  Smith,  2  Hagg.  Consist.  R.  371,  384,  385,  386  ;  ante, 
§  79  ;  Lautour  v.  Teesdale,  8  Taunt.  R.  830  ;  S.  C.  2  Marshall,  R.  243 ; 
The  King  v.  Inhab.  of  Brampton,  10  East,  R.  282.  See  also  Harford  v. 
Morris,  2  Hagg.  Consist.  R.  432,  where  Sir  George  Hay,  in  delivering 
judgment,  spoke  of  this  exception  of  foreign  English  Factories.  Ante, 
^  79,  and  Id.  p.  79,  note  1. 

2  Ante,  §  79. 


CH.  v.]  MARRIAGE.  213 

singularity  of  usages,  who,  thougli  native  subjects,  un- 
der the  protection  of  the  general  law,  are,  in  many  re- 
spects, governed  by  institutions  of  their  own  ;  and  par- 
ticularly in  their  marriages.     For  it  being  the  practice 
of  mankind  to  consecrate  their  marriages  by  religious 
ceremonies,  the  differences  of  religion  in  all  countries, 
that  admit  residents  professing  religions  essentially  dif- 
ferent, unavoidably  introduce  exceptions  in  that  matter 
to  the  universality  of  the  rule,  which  makes  mere  do- 
micil  the  constituent  of  an  unlimited  subjection  to  the 
ordinary  law  of  the  country.     He  then  added  ;  "  What 
is  the  law  of  marriage  in  all  foreign  establishments,  set- 
tled in  countries  professing  a  religion  essentially  differ- 
ent ?     In   the   English   factories   at   Lisbon,  Leghorn, 
Oporto,  Cadiz,  and  in  the  factories  in  the  East,  Smyrna, 
Alleppo,  and  others  ?     In  all  of  which  (some  of  these 
establishments   existing   by  authority  under   treaties, 
and  others  under  indulgence  and  toleration,)  marriages 
are  regulated  by  the  law  of  the  original   country  to 
which  they  are  still  considered  to  belong.     An  English 
resident  at  St.  Petersburg  does  not  look  to  the  ritual  of 
the  Greek  Church,  but  to  the  rubric  of  the  Church  of 
England,  when  he  contracts  a  marriage  with  an  English 
woman.     Nobody  can  suppose,  that,  whilst  the  Mogul 
empire  existed,  an  Englishman  was  bound  to  consult 
the  Koran  for  the   celebration  of  his  marriage.     Even 
where  no  foreign  connection  can  be  ascribed,  a  respect 
is  shown  to  the  opinions  and  practice  of  a  distinct  peo- 
ple.    The  validity  of  a  Greek  marriage  in  the  exten- 
sive dominions  of  Turkey  is  left  to  depend,  I  presume, 
upon  their  own  canons,  without  any  reference  to  Ma- 
hommedan  ceremonies.     There  is  a  jus  gentium  upon 
this  matter,  a  comity,  which  treats  with  tenderness,  or, 
at  least,  with  toleration,  the  opinion  and  usages  of  a  dis- 


214  CONFLICT    OF   LAWS.  [CH.  V. 

tinct  people,  in  this  transaction  of  marriage.  It  may  be 
difficult  to  say  a  priori,  how  far  the  general  law  should 
circumscribe  its  own  authority  in  this  matter.  But  prac- 
tice has  established  the  principle  in  several  instances ; 
and  where  the  practice  is  admitted,  it  is  entitled  to  ac- 
ceptance and  respect.  It  has  sanctioned  the  marriages 
of  foreign  subjects  in  the  houses  of  the  ambassadors 
of  the  foreign  country  to  which  they  belong.^  I  am 
not  aware  of  any  judicial  regulation  upon  this  point. 
But  the  reputation  which  the  validity  of  such  marriages 
has  acquired,  makes  such  a  recognition  by  no  means 
improbable,  if  such  a  question  was  brought  to  judg- 
ment." ^  And  again  ;  "  It  is  true,  indeed,  that  English 
decisions  have  established  this  rule,  that  a  foreign  mar- 
riage, valid  according  to  the  law  of  the  place  where 
celebrated,  is  good  everywhere  else.  But  they  have 
not  e  converso  established,  that  marriages  of  British  sub- 
jects, not  good  according  to  the  law  of  the  place  where 
celebrated,  are  universally,  and  under  all  possible  cir- 
cumstances, to  be  regarded  as  invalid  in  England.  It 
is,  therefore,  certainly  to  be  advised,  that  the  safest 
course  is  always  to  be  married  according  to  the  law  of 
the  country  ;  for  then  no  question  can  be  stirred.  But 
if  this  cannot  be  done  on  account  of  legal  or  religious 
difficulties,  the  law  of  this  country  does  not  say,  that 
its  subjects  shall  not  marry  abroad."  ^  And  he  accord- 
ingly held  the  marriage  valid,  on  the  distinct  British 
character  of  the  parties,  on  their  independence  of  the 
Dutch  law  in  their  own  British  transactions,  on  the  in- 
superable obstacles  of  obtaining  any  marriage  conform- 


1  See  Peitreis  v.  Tondear,  1  Hagg.  Consist.  R.  136. 

2  Ruding  V.  Smith,  2  Hagg.  Consist.  R.  385,  386. 

3  Ibid. 


CH.  v.]  MARRIAGE.  215 

able  to  the  Dutch  law,  on  the  countenance  given  by 
British  authority  and  British  administration  to  this 
transaction,  and  upon  the  whole  country  being  under 
British  dominion.' 

§  120.  In  regard  to  marriages  by  British  subjects  in 
their  own  foreign  settlements,  the  general  rule  is,  that 
marriages,  good  by  the  laws  of  England,  will  be  valid 
there ;  for  they  carry  those  laws  with  them  into  such 
settlements,  and  are  not  to  be  governed  by  the  laws  or 
customs  of  the  natives.  Thus,  it  has  been  held,  that  a 
marriage  between  British  subjects  at  Madras  is  good,  if 
conformable  to  the  British  laws,  and  not  to  the  laws  of 
the  natives  of  India.^ 

§  121.  The  ground,  however,  upon  which  the  general 
rule  of  the  validity  of  marriages,  according  to  the 
Lex  loci  contractus^  is  maintained,  is  easily  vindicated. 
It  cannot  be  better  expressed,  than  in  the  language  of 
Sir  Edward  Simpson,  already  cited.^  All  civilized  na- 
tions allow  marriage  contracts.  They  are  juris  gentium  ; 
and  the  subjects  of  all  nations  are  equally  concerned  in 
them.  Infinite  mischief  and  confusion  must  necessarily 
arise  to  the  subjects  of  all  nations  with  respect  to  legi- 
timacy, successions,  and  other  rights,  if  the  respective 
laws  of  different  countries  were  only  to  be  observed,  as 
to  marriages  contracted  by  the  subjects  of  those  coun- 
tries abroad ;  and  therefore  all  nations  have  consented, 
or  are  presumed  to  consent,  for  the  common  benefit  and 
advantage,  that  such  marriages  shall  be  good  or  not, 
according  to  the  laws  of  the  country  where  they  are 
celebrated.     By  observing  this  rule,  few,  if  any,  incon- 


1  Ibid.  p.  371  ;  ante,  ^  79. 

2  Lautour  v.  Teesdale,  8  Taunt.  R.  830  :  S.  C.  2  Marsh.  R.  213. 

3  Ante,  ^  80  a. 


216  CONFLICT    OF  LAWS.  [CH.  V. 

veniences  can  arise.  By  disregarding  it,  infinite  mis- 
chiefs must  ensue.^  Suppose,  for  instance,  a  marriage 
celebrated  in  France,  according  to  the  law  of  that  coun- 
try, should  be  held  void  in  England,  what  would  be  the 
consequences  ?  Each  party  might  marry  anew  in  the 
other  country.  In  one  country  the  issue  would  be 
deemed  legitimate  ;  in  the  other  illegitimate.  The 
French  wife  would  in  France  be  held  the  only  wife,  and 
entitled  as  such  to  all  the  rights  of  property  apper- 
taining to  that  relation.  In  England,  the  English  wife 
would  hold  the  same  exclusive  rights  and  character. 
What,  then,  would  be  the  confusion  in  regard  to  the 
personal  property  of  the  parties,  in  its  own  nature  tran- 
sitory, passing  alternately  from  one  country  to  the 
other  !  Suppose  there  should  be  issue  of  both  mar- 
riages, and  then  all  the  parties  should  become  domi- 
ciled in  England  or  France,  what  confusion  of  rights, 
what  embarrassments  of  personal  and  conjugal  relations, 
must  necessarily  be  created  !  ^ 

§  122.  Foreign  jurists  in  general  as  strenuously  sup- 
port the  general  rule,  as  the  tribunals  sitting  to  admi- 
nister the  common  law ;  and  undoubtedly  from  a  com- 
mon sense  of  the  pernicious  consequences  which  would 
flow  from  a  different  doctrine.^  This  subject  is  much 
discussed  by  Sanchez,  to  the  following  effect.  As  to 
the  maxim  or  general  rule,  Ut  non  teneantiir  peregrini 
legihus  et  consuetudinibiis  hci,  per  quern  trameunt,  this  rule 
has  exceptions;  (1.)  Quoad  contractimm  solemnitcdcm ; 
nam  qidcimque  forenses,  et  ])cregrini  tcnenhir  servare  solem- 
nitaies  in  contractu  reqidsitas  legihus  et  consuetuclinihiis  ojo- 


1  Scrimshire  r.  Scrimsliire,  2  Ilagg.  Consist.   R.   417,  418,  and  ante, 
^  79,  80,  80  a. 

2  Scrimshire  v.  Scrimshire,2  Hagg.  Consist.  R.  417,  418  ;  ante,  §  80  a. 

3  1  Burge,  Comm.  on  Col.  and  For.  Law,  P.  1,  ch.  5,^  3,  p.  184-188. 


CH.  v.]  MARRIAGE.  217 

pidiy  in  quo  contrahunt  Ratione  enim  contractus  qidlihet 
forum  sortUur  in  hco  contractus  ;  hine  est  contractum  abso- 
lute initum,  censeri  cclehratum  jiixta  consiietudines  et  .statuta 
loci,  in  quo  initur.  Quod  ita  provenit,  quia  contractus  sequi- 
tur  consuetudines  et  statuta  loci,  in  quo  celehratur}  And  a 
case  is  put,  as  to  inhabitants  of  a  place,  where  the  de- 
cree of  the  Council  of  Trent,  for  avoiding  clandestine 
marriages,  is  not  received.  Suppose  they  go  from  Eng- 
land to  places  j96?r  modum  transitus,  iibi  ohligat  decretum, 
and  marry  there  according  to  the  laws  of  their  own 
domicil.  Some  think,  that  such  marriage  is  good  in 
the  case  of  strangers,  as  agreeable  to  their  own  laws, 
to  the  law  of  the  country  in  which  they  are  domiciled, 
though  not  to  the  law  of  the  place  where  they  are  mar- 
ried. But  Sanchez  holds,  that  a  marriage  is  void,  where 
it  wants  the  solemnities  prescribed  by  the  local  law. 
"What"  (says  he)  "the  law  of  the  place  requires, 
where  the  contract  is  made,  and  what  are  to  be  followed 
in  contracts,  are  to  be  decided  solely  by  the  laws  of  the 
place  in  which  the  contract  is  celebrated  -, "  Qu(2  petunt 
leges  loci,  ubi  contractus  initur,  et  quoad  solemnitatem  adhi- 
bendam  in  contractibus,  solce.  leges  loci,  in  quo  contractus  cele- 
bratur,  inspiciimtur?  Locus  aidem,  tibi  hoc  mcdrimoniiim 
initur,  non  petit  earn  parochi  et  testiimi  solemnitatem  ad  7na- 
trimonii  valorem,  cum  ibi  decretum  Tridentini  non  obliget? 
Ea  solemnitas  adhibenda  est,  quam  petunt  leges  loci,  ubi 
contractus  initur  ;  cum  ergo  locus,  ubi  celebratur  matrimo- 


1  Post,  ^  260, 

2  I  cite  this  whole  passage  from  the  case  of  Scrimshire  v.  Scrimshire, 
2  Hagg.  Consist.  R,  412,  413.  See  also  1  Burge,  Comment,  on  Col.  and 
For.  Law,  P.  1,  ch.  5,  §  3,  p.  185,  186  ;  Sanchez,  De  Matrim.  Lib.  3, 
Disput.  18,  ^  10,  n.  26,  28. 

3  Cited  in  Burge,  Comment,  ubi  supra,  p.  185,  186. 

CONFL.  19 


218  CONFLICT    OF   LAWS.  [CH.  V. 

Tmim,  ah  Ms  peregrinis  exegat  solemnitatem  Tiidentini  in  eo 
vigentis  ;  aliter  contractiim  milium  erit} 

§  122  a.  John  Voet  seems  to  affirm  the  same  doc- 
trine to  be  generally  but  not  universally  true,  and  lia- 
ble to  exceptions.  He  puts  the  case  of  the  marriage 
of  an  inhabitant  of  Holland  with  a  female  of  Flanders 
or  Brabant,  in  Flanders  or  Brabant,  according  to  the 
laws  of  the  latter,  but  not  according  to  the  laws  of 
Holland,  and  asks,  if  it  would  be  valid  in  Holland.  To 
which  he  answers,  that  prima  facie  it  should  seem,  that 
such  marriages  ought  in  Holland  to  be  held  valid ; 
"because"  (says  he)  "it  is  sufficient  in  contracts  to 
follow  the  solemnities  of  the  place  in  which  the  contract 
is  celebrated,  although  the  solemnities  are  not  observed 
which  are  prescribed  in  the  place  of  the  domicil  of  the 
parties,  or  of  the  situation  of  the  property,  in  execut- 
ing the  act."  Prima  quidem  specie  videri  posset,  mipiias 
tales  etiam  in  ipsa  Hollandid  ratas  hahendas  esse.  Eo  quod 
siifficit  in  contrahendo  adhiheri  solennia  loci  illius,  in  quo  con- 
tractus celelratur,  etsinon  inveniantur  ohservata  solennia,  qua 
in  loco  domicilii  contralieniium,  ant  rci  sitcB,  actui  gerendo 
prescripta  sunt?  He  adds,  that  there  had  been  different 
opinions  given  in  Holland  on  this  point.  But  he  ex- 
presses his  own  opinion  to  be,  that  such  marriage,  so 
celebrated  out  of  Holland,  ought  to  be  pronounced  in- 
valid in  Holland,  upon  the  very  terms  of  the  Edict  of 
Holland,  by  which  marriages  by  Hollanders,  without 
proper  notifications  thereof,  published  in  the  place  of 
their  domicil,  are  declared  to  be  void.     That  the  gene- 


1  Cited  ibid. 

2  J.  Voet,  ad  Pand.  Lib.  23,  tit.  2,  ^  4,  Tom.  2,  p.  20  ;  cited  also  in 
Scrimshire  w.  Scrimshire,  2  Hagg.  Consist.  R.  415.  See  also  Voet,  ad 
Pand.  Lib.  23,  tit.  2,  ^  85,  p.  55. 


CH.  v.]  MARRIAGE.  219 

ral  rule,  that  it  is  sufficient  in  negotiations  and  contracts 
to  follow  the  solemnities,  required  by  the  law  of  the 
place  where  the  business  is  transacted,  does  not  apply 
in  such  a  case  ;  for  that  rule  has  its  proper  place,  only 
where  the  business  is  not  so  transacted  in  fraud  of  the 
law,  or  where  no  statute  has  positively  declared,  that 
the  act  shall  be  void,  when  done  by  a  subject  according 
to  the  foreign  solemnities.  Sed,  eo  non  obstante,  magis 
est,  ut  mcdrimonia,  eo  modo  extra  HoUandiam  ah  Hollando 
celehrata,  infirma  per  Jiidicem  HoUandicum  prommciari  de- 
heant,  propter  Edicti  verha,  qiiibus  niiptice,  per  Hollandum 
sine  deminciationibiis  piiblicis  in  domicilii  hco  interpositis 
contractcE,  irritce  cssejusscE  sunt.  Nihil  in  contrarimn  faci- 
ente  illo  axiomate,  quod  siifficiat  in  negotiis  contrahendis  ad- 
Mberi  solennia  loci,  in  quo  actus  geritur :  cum  ista  regula 
locum  inveniat,  si  non  in  fraudem  statuti  quis  alio  se  conttir 
lerit  ad  actum  celehrandum,  aid  statutum  nominatim  irritum 
declaraverit  actum,  a  suo  suljecto  peregrind  solennitate  ges- 
tum} 

§  122  h.  Paul  Yoet  holds  an  opinion  decidedly  in 
favor  of  the  general  rule.  Quid  si  de  contractuhis  pro- 
prie  dictis,  et  quidem  eormn  solemnihiis  contentio ;  Quis 
locus  spectaUtur  ;  an  domicilii  contrahentis,  an  loci,  nU  quis 
contra/lit  ?  Respondeo  affirmanter.  Posterius.  Quia,  cen- 
setur  quis  semet  contraJiendo,  legihus  istiiis  loci,  id>i  contra- 
hit,  etiam  ratione  solemnium  siihjicere  voluisse.^  Huberus 
admits,  that  a  marriage  valid  by  the  law  of  the  place, 
where  it  is  celebrated,  is  binding  everywhere,  under  the 
exception,  which  he  generally  applies,  that  it  is  not 
prejudicial  to  others,  or  that  it  is  not  incestuous.   Ilatri- 


1  J.  Voet,  ad  Pand.  Lib.  23,  tit.  2,  §  4,  p.  20. 

2  Voet,  De  Statut.   ^  9,  ch.  2,  n.  9,  p.  267,  edit.  1715  ;  Id.  323,  edit. 
1661;  post,  §  261. 


220  CONFLICT   OF   LAWS.  [CH.  V. 

moniuni  pertinet  etiam  ad  has  rcgiilas.  JSi  licitwn  est  eo 
locoy  iiU  contradwn  et  celebratmn  est,  uUque  validiim  erit, 
effedumque  hahelit,  sub  eadem  exceptione  prejiidicii  aliis 
non  creandi ;  cid  licet  addere,  si  exempli  nimis  sit  abomi- 
nandi ;  id  si  incestxim  juris  gentium  in  secundo  gradii  conti- 
gerit  aliciM  esse  permissum}  Bouhier  adopts  the  general 
rule,  hesitating  as  to  the  nature  and  extent  of  the  ex- 
ceptions.^ Hertius  lays  down  the  following  axiom.  If 
the  law  prescribes  a  form  for  the  act,  the  place  of  the 
act,  and  not  of  the  domicil  of  the  parties,  or  of  the  situ- 
ation of  the  property,  is  to  be  considered.  Si  Lex  actiii 
formam  dat,  %nsp)ide7idiis  est  locus  actus,  non  domicilii,  non 
rei  sitce?  And  he  puts  the  following  as  an  example. 
A  marriage  contracted  according  to  the  solemnities  of 
any  place  where  the  married  couple  are  commorant, 
cannot  be  rescinded  upon  the  pretext,  that,  in  the 
domicil  or  country  of  the  husband,  other  solemnities  are 
required.  3Iatrimoniiim  juxta  solennitates  loci  alicujus, 
libi  sponsus  et  sponsa  commorahantur,  contradum  non  potest 
prwtextu  illo  rescindi,  quod  in  domicilio  aut  patria  mariti 
alice  solennitates  ohserventur^  He  afterwards  puts  excep- 
tions to  this  general  axiom ;  one  of  which  is,  that  a 
contract  between  foreigners,  both  belonging  to  a  foreign 
country,  is  to  be  governed  by  the  law  of  their  own 
country  and  not  by  that  of  the  Lex  loci  contractus.^  In 
this  exception  he  has  to  encounter  many  distinguished 
adversaries.^     The  French  jurists   seem    generally   to 


1  Huberus,  Lib.  1,  tit.  3,  ^  8 ;  ante,  ^  85. 

2  Bouhier,  Cout.  de  Bourg.  ch.  27,  ^  59  to  ^  66. 

3  Post,  ^  242,  260  ;  Hertii  Opera,  Tom.  1,  De  Collis.  Leg.  §4,  art.  10, 
.  126,  edit.  1737  ;  Id.  p.  179,  edit.  1716. 

4  1  Hertii  Opera,  De  Collis.  Leg.  ^  4,  art.  10,  edit.  1837,  p.  126;  Id. 
.  179,  edit.  1710  ;  Id.  art.  10,  p.  128,  edit.  1737  ;  Id.  p.  182,  edit.  1716. 

5  Id.  p.  128,  ^  10,  edit.  1737;  Non  Valet  (6.) 

6  Ibid. 


CH.  v.]  MARRIAGE. 


221 


support  the  doctrine,  that  marriage  is  to  he  held  valid 
or  not,  according  to  the  law  of  the  place  of  celebration, 
except  in  cases  positively  prohibited  by  their  own  laws 
to  their  own  subjects,  or  where  it  is  in  fraud  of  those 
laws.^  And  Merlin  says,  that  it  is  a  contract  so  com- 
pletely of  natural  and  moral  law,  that  when  celebrated 
by  savages  in  places  where  there  are  no  established 
laws,  it  will  be  recognized  as  good  in  other  countries.^ 

§  123.  A  question  has  been  much  discussed,  how  far 
a  marriage,  regularly  celebrated  in  a  foreign  country, 
between  persons  belonging  to  another  country,  who 
have  gone  thither  from  their  own  country  for  that  pur- 
pose, is  to  be  deemed  valid  if  it  is  not  celebrated  ac- 
cording to  the  law  of  their  own  country.  Huberus,  as 
we  have  seen,^  has  put  the  very  question,  and  has 
applied  it  as  well  to  cases  of  minority  as  of  incest ;  and 
he  does  not  hesitate  to  pronounce  such  marriages 
invalid,  because  they  are  an  invasion,  or  fraud  upon 
the  law  of  the  country  to  which  the  parties  belong,  and 
in  which  they  are  domiciled.^  Bouhier  has  advocated 
the  same  opinion  ;  ^  and  it  is  also  maintained  by  Paul 
Voet.  He  states  it  as  an  exception  to  the  general  rule, 
that  the  law  of  the  place  of  the  contract  ought  to 
govern.  Nisi  quis,  quo  in  loco  domicilii  evitaret  molestam 
aliqiiam  vel  sumptuosam  solemnitatem  ;  adeoqiie  infraudem 


'  Post,  ^  123. 

2  Merlin,  R6pert.  Mariage,  §  1,  p.  343.  See  also  2  Boullenois,  Obser. 
46,  p.  458;  1  Froland,  M6m.  p.  177,  ch.  1  ;  Pardessus,  Vol.  5,  P.  6,  tit. 
7,  ch.  2,  art.  1481  to  1495  ;  Pothier,  Trait6  du  Mariage,  n.  263 ;  Journal 
des  Audiences,  Tom.  1,  ch.  24 ;  S.  C.  cited  Scrimshire  «.  Scrinashire, 
2  HagjT.  Consist.  R.  413,  414. 

3  Ante,  ^85,  §  116,  a, 

4  Huberus,  Lib.  1,  tit.  3,  §  9.  See  ante,  ^  85,  116  a,  where  the  pas- 
sages are  cited  at  large. 

6  Bouhier,  Cout.  de  Bourg.  ch.  28.  ^  60,  61,  62,  p.  557 ;  ante,  ^  84. 
19* 


222  CONFLICT    OF   LAWS.  [CH.  V. 

Sid  statidi  niilld  necessitate  cogente  alio  proficiscatur,  et  mox 
ad  eoriim  domicilium,  gesto  alihi  negotio,  revertatiir}  Jolm 
Voet  (as  we  have  seen)  holds  the  same  opinion.^  Po- 
thier  puts  the  very  case  in  the  strongest  terms.  He 
says  that  the  conditions  and  ceremonies,  prescribed  by 
the  French  Laws,  for  the  validity  of  marriages  between 
French  subjects  are  obligatory,  even  when  the  marriage 
has  been  celebrated  between  them  in  a  foreign  country, 
whenever  it  appears  that  they  have  gone  thither  in 
fraud  of  those  laws,  and  that  the  marriage,  under  such 
circumstances,  will  be  a  nullity.^  This  doctrine  turns 
upon  the  general  principle,  that  an  act  done  designedly, 
in  fraud  or  evasion  of  the  law,  by  a  mere  change  of 
locality,  is  utterly  void. 

§  123  a.  In  opposition  to  this  doctrine  it  has,  how- 
ever, been  settled,  after  some  struggle  both  in  England 
and  America,  that  such  a  marriage  is  good.  The  ques- 
tion in  England  was  first  solemnly  decided  by  the  High 
Court  of  Delegates  in  1768  j^   and  having  been  sub- 


1  p.  Voet,  De  Statut.  ^  9,  ch.  2,  p.  268,  edit.  1715  ;  Id.  p.  323,  324, 
edit.  1661. 

2  Ante,  ^  122  a  ;  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  5, 
^  3,  p.  196. 

3  Pothier,  Trait6  du  Mariage,  n.  263. 

4  Compton  V.  Bearcroft,  cited  in  Bull.  N.  P.  114,  and  in  Harford  v. 
Morris,  2  Hagg.  Consist.  R.  429,  430,  443,  444.  — It  has  been  said,  that 
this  decision  may  be  explained  upon  the  ground,  that  the  English  Mar- 
riage Act,  under  which  that  question  arose,  contained  an  express  excep- 
tion of  marriages  in  Scotland  ;  and  that  the  marriage  of  the  parties  in 
that  case,  who  were  English,  and  had  gone  from  England  for  the  express 
purpose  of  celebrating  the  marriage  in  Scotland,  was  therefore  good,  as  it 
was  according  to  the  law  of  Scotland.  Admitting  this  to  be  the  tree  con- 
struction of  the  English  Marriage  Act ;  yet  the  question  directly  raised  by 
the  libel  was,  whether  a  marriage  in  a  foreign  country  by  British  subjects, 
domiciled  in  England,  and  not  changing  their  domicil,  who  had  gone  there 
expressly  to  avoid  and  evade  the  laws  of  England,  was  good  or  not ;  and 
there  is  strong  reason  to  believe,  that  this  point  was  deemed  a  material 


CH.  v.]  MARRIAGE.  223 

sequently  recognized,  notwithstanding  the  doubts  of 
Lord  Mansfield,  it  may  now  be  deemed  settled  there 
beyond  controversy.^  Lord  Mansfield,  on  the  occasion 
alluded  to,  arguendo,  said ;  "  It  has  been  laid  down  at 
the  Bar,  that  a  marriage  in  a  foreign  country  must  be 
governed  by  the  law  of  the  country  where  the  marriage 
was  had ;  which  in  general  is  true.  But  the  marriages 
in  Scotland  of  persons  going  from  hence  for  that  pur- 
pose, were  instanced  by  way  of  example.  They  may 
come  under  a  very  different  consideration,  accord- 
ing to  the  opinion  of  Huberus,  and  other  writers."^ 
This  is  manifestly  no  more  than  the  expression  of  a 
doubt  upon  a  point  not  directly  before  the  Court. 
[The  Lish  Courts  have  also,  after  full  deliberation, 
adopted  the  same  rule.®] 

§  123  ^.  In  Massachusetts,  upon  full  discussion,  the 
doctrine  has  been  firmly  established.'^  It  was  admitted 
on  that  occasion,  by  the  Court,  that  the  doctrine  is 
repugnant  to  .the  general  principles  of  law  relating  to 
contracts ;  for  a  fraudulent  evasion  of,  or  fraud  upon 
the  laws  of  the  country,  where  the  parties  have  their 
domicil,  would  not,  except  in  the  contract  of  marriage, 
be   protected   under   the  general  principle.^     But  the 


ingredient  in  the  ultimate  judgment  of  the  case.  —  See  the  case  of  Comp- 
ton  V.  Bearcroft,  as  commented  on  in  2  Hagg.  Consist.  R.  443,  444,  and 
the  Reporter's  note  in  p.  444. 

1  See  Harford  v.  Morris,  2  Hagg.  Consist.  R.  423  ;  Robinson  v.  Bland, 
2  Burr.  R.  1077  to  1080  ;  Steel  v.  Braddell,  1  Milw.  Consis.  R.  1  ;  Fer- 
gusson  on  Marr.  and  Divorce,  63  to  65. 

2  Robinson  v.  Bland,  2  Burr.  R.  1079,  1080  ;  Huber.  Lib.  1,  tit.  3,  ^  8. 

3  Steele  v.  Braddell,  1  Milw.  Consis.  R.  1,  where  this  subject  is  ably 
examined. 

4  Medway  v.  Needham,  16  Mass.  R.  157,  161  ;  Putnam  v.  Putnam, 
8  Pick.  R.  433. 

5  Ibid.     The  Court  put  the  following  case.      Thus,  parties,  intending 


224  CONFLICT    OF   LAWS.  [CH.    V. 

exception  ia  fjivor  of  marriages  is  maintained  upon 
principles  of  public  policy,  with  a  view  to  prevent  the 
disastrous  consequences  to  the  issue  of  such  a  marriage, 
which  would  result  from  the  loose  state  in  which  per- 
sons so  situated  would  live.^  The  doctrine  has  been 
carried  even  farther,  so  as  to  admit  the  legitimacy  of 
the  issue  of  a  person  who  had  been  divorced  a  vinculo 
for  adultery,  and  had  been  declared  by  the  local  law 
incompetent  to  marry  again,  but  who  had  gone  into  a 
neighboring  state,  and  there  contracted  a  new  marriage, 
and  had  issue  by  that  marriage.^  The  like  rule  has 
been  applied  in  flivor  of  the  widow  by  such  second  mar- 
riage, so  as  to  entitle  her  to  dower  in  the  real  estate  of 
her  deceased  husband,  situate  in  Massachusetts.^ 

§  124.  The  English  doctrine,  in  relation  to  Scotch 
marriages,  by  parties  domiciled  in  England,  and  going 
to  Scotland  to  marry,  though  a  plain  violation  of  the 
real  object  and  intent,  even  if  not  of  the  words  of  the 
English  Marriage  Act,  seems  to  have  proceeded  mainly 
upon  the  ground  of  public  policy.''     It  is  the  least  of 


to  make  an  usurious  barg-ain,  cannot  give  validity  to  a  contract,  in  which 
more  than  the  lawful  interest  of  their  country  is  secured,  by  passing  into 
another  territory,  where  there  may  be  no  restriction  of  interest,  or  where 
it  is  established  at  a  higher  rate,  and  there  executing  a  contract  before 
agreed  on.     Medway  v.  Needham,  16  Mass.  R.  160. 

1  Medway  1).  Needham,  16  Mass.  160,  161. 

2  West  Cambridge  v.  Lexington,  1  Pick,  R.  596  ;  2  Kent,  Comm. 
Lect.  26,  p.  92,  93,  3d  edit.  See  Fergusson  on  Marr.  and  Divorce,  note 
R,  p.  469  ;  ante,  ^  89. 

3  Putnam  v.  Putnam,  8  Pick.  R.  433, 

4  See  Steele  v.  Braddell,  1  Milw.  Consis.  R,  1.  Mr.  Burge  does  not 
deem  it  to  be  in  fraud  of  the  English  laws,  because  the  English  Marriage 
Act  does  not  in  fact  prohibit  such  Scottish  marriages.  This  is  true  in 
terms;  and  if  it  did  prohibit,  tiie  question  of  the  conflict  of  laws  in  relation 
to  such  marriages  would  never  have  arisen  in  England;  for  the  statute 
would  have  directly  decided  the  matter.     Nevertheless,  the  whole  object 


CH.  v.]  MARRIAGE.  225 

two  evils,  in  a  political  sense,  a  civil  sense,  and  a  moral 
sense.     We  have  already  seen,  that  the  positive  code 


of  the  parties  in  this  class  of  marriages  plainly  is  to  evade  the  law  of  their 
own  country  by  a  marriage,  valid  by  the  law  of  the  country,  where  it  is 
celebrated,  without  changing  their  own  domicil,  and  thus  getting  rid  of  all 
the  anxious  provisions  of  the  statute  against  ill  advised  and  clandestine 
marriages.     In  short,  all  the  Gretna  Green  marriages  in  Scotland  (as  they 
are  called)  are  intended  by  the  parties  to  get  rid  of  the  solemnities  of  the 
English  law.     Mr.  Burge  says;    "The  decisions  of  the  courts  in  Eng- 
land, which  have  declared  valid  a  marriage  contracted  in  Scotland  by 
English  persons,  who  had  resorted  thither  for  the  sole  purpose  of  evading 
the  prohibitions  of  the  English  Marriage  Act,  are  perfectly  consistent  with 
the  admission  of  this  exception.     Such  a  marriage  is  valid,  because  it  is 
not  prohibited  by  the  English  Marriage  Act.     It  is  a  misapplication  of 
terms  to  describe  it  as  an  evasion,  or  in  fraud  of  the  Act ;  for,  in  fact,  it  is 
not  prohibited.     There  is  an  express  provision,  that  nothing  in  that  act 
shall  extend  to  marriages  in  Scotland,  or  to  any  marriages  beyond  sea. 
The  act,  therefore,  left  English    subjects  at  perfect  liberty  to  resort  to 
any  country  for  the  purpose  of  contracting  and  celebrating  their  marriage. 
So  far  from  the  act  containing  a  general  and  absolute  prohibition,  and  a 
declaration  of  the  nullity  of  all  marriages,  contracted  otherwise  than  in 
conformity  to  its  provisions,  it  confines  such  prohibition  anH  dficlaration  to 
marriages  contracted  in  England.     These  decisions,  therefore,  are  founded 
upon  the  right  of  the  parties,  consistently  with  the  Marriage  Act,  to  resort 
to  the  foreign  country  for  the  purpose  of  contracting  their  marriage,  and 
upon  the  act  itself  containing  no  provision  which  renders  void  a  marriage 
so  contracted.     It  is  upon  this  ground,  and  to  this  extent,  that  the  argu- 
ment of  Sanchez  must  be  understood,  when  he  contends  that  a  marriage 
is  not  void,  because  the  parties  have  resorted  to  a  country,  in  which  they 
have  contracted  it,  for  the  purpose  of  avoiding  ceremonies,  which  are 
required  in  their  own  country.     '  Displicet  mihi  hsec  limitatio,  et  credo, 
licet  adirent  eo  fine,  ut  possent  libere  absque  parocho  et  testibus  contra- 
here,  esse  ratum  matrimonium.     Nam  qui  jure  suo  utitur   non  potest 
dici  fraudem  committere,  ut  ea  ratione  effectus  impediatur.'     '  Nullus 
videturdolo  facere,  qui  jure  suo  utitur.'     '  Est  enim  fraus  licita,  cum  con- 
trahentes  utantur  jure  suo  :    ergo  cum  adeuntes  locum,  ubi  non   viget 
Trident,  animo  contrahendi  absque  parocho  et  testibus,  utunturjure  suo, 
habet  enim  jus  sic  ibi  contrahendi,  erit  fraus  licita,  nee  ea  ratione  elTectus 
ac  valor  matrimonii  impedietur.'     The  same  jurist,  in  a  subsequent  pas- 
sage, admits  the  distinction  between  a  personal  incapacity  imposed  by  the 
law  of  the  domicil,  which  would  accompany  the  party  in  whatever  country 
he  contracted,  and  a  law  which  attached    to  the  act  only  in  respect  of 
its  taking    place   in  the  country    in  which  that  law  prevailed.      'Die 


226  CONFLICT    OF   LAWS.  [CH.  V. 

of  France  has  promulgated  an  opposite  doctrine,  with 
unrelenting  severity.^     The  wisdom  of  such  a  course 


quando  inhabilitas  est  constituta  absolute  et  simpliciter,  sequi  personam 
quocumque  euntem  :  secus  quando  est  constituta  per  modutn  legis,  sicut 
enim  lex  ilia  non  obligat  in  illis  locis,  ita  inhabilitas,  et  annullalio  actus 
non  obligat  ibi,  nee  sequitur  personam,  nisi  dum  est  in  locis,  in  quibus  ea 

lex  vim  obligandi  habet non  enim  ligatur  lege  Ecclesiastica 

in  loco,  ubi  ex  voluntate  ac  dispositione  ejusdem  Ecclesiae  non  habet  robur 
eadem  lex  :  ut  contingit  in  locis,  ubi  aut  non  recepta  aut  non  publicata 
fuit."  1  Burge,  Comm.  on  Col.  and  For.  Law,  P.  1,  ch.  5,  §  3,  p.  192, 
193.  The  decisions  in  the  Supreme  Court  of  Massachusetts,  as  they  are 
stated  in  the  Commentaries  on  American  Law,  carry  the  doctrine  much 
further,  and  reject  any  exception  founded  on  the  purpose  for  which  the 
parlies  resorted  to  the  country,  where  they  contracted  the  marriage.  The 
parties,  in  the  case  referred  to,  had  left  the  State  on  purpose  to  evade  its 
statute  law,  and  to  marry  in  opposition  to  it,  and  being  married,  they  re- 
turned again  ;  yet  their  marriage  was  held  valid,  if  it  were  valid  accord- 
ing to  the  laws  of  the  place  where  it  was  contracted,  notwithstanding  the 
parties  went  into  the  other  State  with  an  intention  to  evade  the  laws  of 
their  own."  (Ibid.)  In  these  remarks  Mr.  Burge  is  mainly  borne  out  as 
to  the  effect  of  the  English  Marriage  Act,  by  the  langnage  of  Sir  George 
Hay,  in  Harford  «.  Morris,  (2  Hagg.  Consist.  R.  p.  426  to  p.  432.)  He 
there  said  ;  "  The  next  question  is,  whether  by  the  law  of  England  this 
marriage  is  valid  1  It  is  stated  throughout  that  it  is  a  marriage  without 
the  consent  of  the  natural  mother  of  the  party,  and  of  the  testamentary 
Guardians,  and  the  Lord  Chancellor  ;  and  that  the  parties  went  into  a 
foreign  country  to  evade  the  laws  of  this  realm.  Whether  upon  that  ac- 
count, or  any  of  the  accounts  already  mentioned,  it  is  void  by  the  law  of 
England,  is  the  first  question.  Parties  may  go  out  of  England  and  marry 
by  necessity  or  choice  ;  in  either  way  a  foreign  marriage  is  not  void  upon 
that  account  by  the  laws  of  England.  But  it  is  said,  they  go  in  violation 
of  the  order  of  the  Chancellor,  and  without  the  consent  of  parents  and 
guardians.  What  is  the  law  of  England,  that  requires  the  consent  of 
parents  and  guardians  ?  It  is  the  marriage  act.  One  of  the  greatest  ma- 
gistrates, that  ever  appeared  in  this  country,  explains  it,  that  the  view  of 
that  act  was  to  restrain  the  abuse,  that  was  so  scandalous  in  this  country, 
from  clandestine  marriages,  and  to  get  proof  of  marriages,  which  other- 
wise might  become  uncertain  ;  as  it  is,  wherever  you  cannot  have  evidence 
of  the  fact  of  the  marriage  being  rightly  performed,  and  legitimacy  be- 
comes uncertain.  The  principal  view  of  that  law  was  to  affect  such  mar- 
riages. The  law  does,  indeed,  in  one  respect,  put  a  restraint,  which  was  not 

1  Ante,  ^  84,  90,  123,  and  note. 


CH.  v.] 


MARRIAGE.  227 


remains  to  be  established  ;  and  it  will  be  no  matter  of 
surprise,  if  hereafter  we  shall  find  a  Frenchman,  with 


known  to  the  common  law,  upon  the  marriage  of  minors  without  the  con- 
sent of  parents  ;  but  it  does  not  malte  all  the  marriages  of  minors,  even 
in  England,  void.  Marriages  by  license  only  are  void,  for  want  of  con- 
sent of  parents  and  guardians.  If  this  marriage  had  been  in  England, 
and  if,  instead  of  going  abroad,  the  parties  had  been  married  in  any  great 
parish  of  this  town  or  country  by  banns,  would  that  marriage  have  been 
good,  or  not,  by  the  laws  of  England  ?  No  law  says  that  it  shall  be  void. 
It  is  a  marriage  by  license  only,  that  is  void  by  the  law  of  England,  for 
want  of  consent  of  the  parents  or  guardians.  It  is  observed  also,  that  the 
act  makes  particular  exceptions,  without  which  the  purpose  of  the  mar- 
riage act,  though  an  exceeding  good  act,  might  have  been  questioned  be- 
fore this  time,  if  there  had  not  been  so  many  ways  to  avoid  the  restraint 
put  upon  the  marriage  of  minors.  It  is  provided,  that  nothing  in  this  act 
shall  extend  to  marriages  in  Scotland,  nor  to  any  marriages  solemnized 
beyond  sea.  Then  marriages  in  Scotland  and  beyond  sea  by  the  law  of 
England,  remain  in  the  same  state  as  if  the  statute  had  not  passed.  Mar- 
riage in  Scotland,  if  not  contrary  to  the  law  of  England,  is  good,  and  it 
has  been  so  determined.  That  determination  passed,  not  on  the  ground, 
that  the  marriage  was  valid  in  Scotland,  and  that  therefore  it  was  good  — 
nothing  was  laid  before  the  Court  to  show,  that  the  marriage  was  valid  in 
Scotland  —  but  because  the  Act  of  Parliament  did  not  put  any  restraint 
upon  English  subjects  being  married  in  Scotland,  with  respect  to  the  con- 
sent of  parents.  On  that  ground  it  is,  that  those  marriages  are  held  good, 
not  being  contrary  to  the  law  of  England.  The  same  holds  as  to  mar- 
riages beyond  sea.  For  English  subjects  going  abroad,  or  to  Scotland,  to 
marry  English  subjects,  have  an  exemption  from  that  restraint  in  the  act. 
What  was  the  case  before  the  marriage  act  ?  Will  anybody  say,  that 
before  the  act,  a  marriage  solemnized  by  persons  going  over  to  Calais,  or 
happening  to  be  there,  was  void  in  this  country,  because  such  a  marriage 
might  be  void  by  the  laws  of  France,  as  perhaps  it  was,  if  solemnized  by 
a  Protestant  priest,  whom  they  do  not  acknowledge,  or  if  any  way 
clandestine,  or  without  consent  ;  and  that  therefore  it  should  be  set  aside 
by  a  court  in  England,  upon  account  of  its  being  void  by  the  law  of  France? 
No.  The  laws  of  the  state,  to  which  the  parlies  are  subject,  must  deter- 
mine the  marriage,  unless  you  can  show  that  the  law  of  the  other  country 
is  that,  by  which  its  validity  is  to  be  decided.  That  brings  me  to  the 
other  great  consideration  in  this  case,  whether  the  validity  of  these  mar- 
riages, being  solemnized  in  Ypres  and  Denmark,  are  to  be  tried  by  the 
laws  of  those  countries.  If  they  are,  the  laws  of  those  countries  must 
be  laid  before  the  Court,  and  proved  in  the  best  manner  possible  ;  not  by 
the  opinions  of  lawyers,  which  is  the  most  uncertain  way  in   the  world. 


228  CONFLICT    OP   LAWS.  [CH.   V. 

two  lawful  wives,  one  according  to  the  law  of  the  place 
of  the  marriage,  and  the  other  according  to  that  of  his 


but  by  certificates,  laying  the  ordinances  of  those  countries  before  the 
Court.  Without  considering  how  far  that  law  is  capable  of  being  proved 
in  the  present  case,  the  previous  question  arises  with  respect  to  jurisdic- 
tion, whether  the  laws  of  that  country,  in  which  the  marriage  is  celebrat- 
ed, should  operate,  merely  because  it  was  celebrated  there.  I  conceive 
the  law  to  be  clear,  that  it  is  not  the  transient  residence,  by  coming  one 
morning  and  going  away  the  next  day,  which  constitutes  a  residence,  to 
which  the  lex  loci  can  be  applied  ;  so  as  to  give  a  jurisdiction  to  the  law, 
and  cause  it  to  take  cognizance  of  a  marriage  celebrated  there.  It  is  cer- 
tain that  domicil,  or  established  residence,  (that  is,  such  a  kind  of  resi- 
dence as  makes  the  party  subject  to  the  lavps  of  that  country,)  may  have 
that  effect  ;  and,  with  respect  to  persons  so  domiciled,  the  laws  of  the 
country  must  be  adhered  to  in  contracts  made  there.  This  was  the  case 
of  Scrimshire.  All  the  proceedings  of  the  Court  of  France  were  laid 
before  the  Court.  I  remember  it,  though  it  was  a  long  time  ago  ;  and  I 
was  counsel  for  the  lady.  The  mother  of  the  young  man  was  at  Bologne, 
where  they  had  gone  animo  morandi.  It  was  stated  in  all  the  proceed- 
ings, that  they  were  domiciled  in  France  ;  he  went  there  to  reside  for  pur- 
poses of  education,  and  did  reside  there  ;  and  the  mother  continued  to  re- 
side there,  till  she  obtained  the  sentence,  that  was  pleaded  in  the  Con- 
sistory Court.  I  do  not  in  the  least  call  in  question  that  determination  in 
the  Consistory  Court.  Every  man  has  allowed  the  great  and  extensive 
knowledge  of  the  Judge  ;  but  he  founded  his  judgment  upon  the  sentence 
given  in  that  Court,  which  had  assumed  jurisdiction,  and  had  a  right  to 
assume  it  ;  he  paid  all  respect  to  the  judgment  ;  and  upon  that  he  gave 
his  opinion,  that  the  party  suing  should  be  dismissed."  A  somewhat  dif- 
ferent account  of  the  case  of  Compton  v.  Bearcroft  (here  referred  to)  is 
given  by  Sir  W.  Wynne,  in  Middleton  v.  Janverin,  (2  Hagg.  Consist.  R. 
443,  444.)  On  that  occasion  he  said, —  "  It  is,  however,  contended,  that 
admitting  the  law  to  invalidate  the  marriage  in  those  countries,  yet  that  is 
not  the  law  by  which  this  case  is  to  be  decided  in  this  Court.  It  is  not 
the  lex  loci,  where  the  marriage  ceremony  is  performed,  which  is  to  de- 
termine the  question,  but  you  must  find  out  some  other  law,  and  that  is 
declared  by  the  counsel  for  Mrs.  Janverin  to  be  the  law  of  England.  Now, 
in  respect  to  the  lex  loci  having  been  adopted  as  a  rule,  I  think  the  case 
of  Compton  v.  Bearcroft  proves  it  very  strongly.  In  that  case  the  Court 
of  Delegates  affirmed  the  rejection  of  the  libel,  which  was  given  in  against 
the  marriage,  on  different  grounds,  as  I  have  understood,  from  those  which 
were  taken  in  the  Court  of  Arches,  and  because  the  marriage  was  a  good 
marriage  in  Scotland,  and  if  all  the  facts  pleaded  in  the  libel  were  proved, 
the  marriage  could  not  be  pronounced  void  under  the  marriage  act  ;  in 


cii.  v.] 


MARRIAGE.  229 


domicil  of  origin.^     The  doctrine  in  England  has,  in- 
deed, stopped  short  of  the  moral  mischief ;  if  the  de- 


which  it  is  expressly  declared,  that  it  shall  not  extend  to  Scotland.  On 
those  grounds  it  was,  as  1  have  understood,  that  the  Delegates  rejected 
the  libel.  The  case  of  that  marriage  was  therefore  determined  by  the 
lex  loci.  Those  persons  having  gone  to  Scotland,  and  been  married  in  a 
way  not  good  in  England  but  good  in  Scotland,  and  not  affected  by  the 
marriage  act,  were  considered  to  have  contracted  a  valid  marriage."  The 
learned  Reporter  has  added  a  very  important  note  to  2  Hagg.  Consist.  R. 
444,  note  (*),  on  this  point.  It  is  certain,  that  foreign  jurists  do  not  take 
any  distinctions  between  a  violation  of  the  positive  prohibition  by  the 
words,  if  the  laws  and  the  case  of  a  mere  evasion  or  fraud  upon  the  known 
policy  of  the  laws,  by  a  marria^^e  in  another  country,  without  any  change 
of  domicil  by  the  parties.  See  also  Fergusson  on  Marr.  and  Divorce, 
417  ;  Id.  223,  461.  It  has  always  appeared  to  me,  that  the  true  doctrine 
of  international  policy  is,  that  a  foreign  marriage,  valid  by  the  law  of  the 
place  of  marriage,  is  valid  everywhere,  notwithstanding  the  parties  may 
be  domiciled  in  another  country,  where  the  marriage,  if  celebrated  there, 
would,  by  the  laws  thereof,  be  void,  and  the  parties  have  gone  thither  for 
the  express  purpose  of  evading  the  requisitions  of  the  law  of  their  domi- 
cil. A  learned  writer,  in  the  London  Legal  Observer  for  January,  1840, 
has  commented  on  this  subject  with  great  acuteness  and  ability.  The  fol- 
lowing extract  may  be  gratifying  to  the  learned  reader,  as  it  constitutes  an 
opposite  view  to  that  of  Mr.  Burge.  "  The  idea  of  fraud  on  the  law  of 
a  country  is  rather  a  favorite  one  with  jurists.  When  examined,  how- 
ever, we  think  it  will  be  found  to  have  a  very  narrow  foundation  for  the 
supposed  countenance  afforded  to  it  by  our  law.  By  the  courts  of  several 
American  States  it  has  been  repeatedly  overruled.  It  is  principally  ground- 
ed on  an  opinion  of  the  jurist,  Huber,  (Hub.  de  Confl.  Leg.  lib.  1,  tit.  3, 
^  8,)  supported  by  a  dictum  of  Lord  Mansfield,  in  Robinson  i'.  Bland. 
(1  W.  Bl.  234,  256  ;  2  Burrows,  1077.)  In  the  first  place,  it  is  at  once 
met  by  the  difficulty,  that  it  has  been  over  and  over  again  decided,  that 
Scotch  and  foreign  marriages  (between  minors  and  others,  who  could  not 
have  contracted  marriage  here)  undjertaken,  expressly  and  admittedly,  to 
evade  our  law,  are  good,  if  good  perlegem  loci,  and  vice  versa.  But  then, 
say  the  advocates  of  the  in  fraudem  legis  doctrine,  these  decisions  are  con- 
sistent ;  because  the  Marriage  Act  in  terms  excepts  Scotch  and  foreign  mar- 
riages. In  this  view,  however,  they  at  once  throw  over  Lord  Mansfield's 
authority,  because,  as  Sir  W.  Blackstone,  who  was  counsel  in  the  case, 
notes  it  in  the  margin  of  his  report,  he  threw  out  a  '  quaere,  whether  stolen 

1  1    Touliier,   Droit   Civil,    art.  576  ;  Code  Civil,  art.  144,  148,  170  ; 
Merlin,  Rcpert.  tit.  Loi,  ^  6,  n.  1,  and  ante,  note,  §  84,  117. 
CONFL,  20 


230  CONFLICT    OF   LAWS.  [CH.  V. 

cision,  promulgated  in  its  Courts,  can  be  maintained, 
(of  which  doubts  may  justly  be  entertained,)  that  a 


marriages  in  Scotland  are  valid.'  However,  as  this  case  is  really  the 
only  one,  in  which,  as  far  as  we  are  aware,  the  idea  of  evasion  of  our 
law  is  set  up,  we  must  go  more  fully  into  it.  The  case  was  argued 
in  1760,  The  question  was,  whether  a  bill  of  exchange  given  in  France 
by  one  English  subject  to  another,  but  made  payable  in  England,  the 
consideration  of  which  was  a  gambling  debt,  should  be  held  recovera- 
ble in  an  English  Court,  It  was  found  not  to  be  recoverable  in  France  ; 
but  Lord  INIansfield  (though,  on  this  plain  ground,  he  afterwards  said 
the  case  had  after  all  come  to  nothing)  had  it  argued  twice,  as  bearing 
on  international  law.  In  his  judgment  he  touched  on  the  rules  ap- 
plicable to  foreign  personal  contracts.  He  lays  down  the  general 
rule  as  to  the  lex  loci  prevailing.  But  then  he  says  ;  '  this  rule  admits 
of  an  exception,  where  the  parties  had  a  view  to  a  different  kingdom. 
Contracts  are  to  be  considered  according  to  the  place,  where  they  are  to 
be  executed.'  And  Mr.  Justice  Wilmot  said;  'The  place  where  the 
money  is  to  be  paid,  must  govern  the  law.  This  was  determined  as  to 
usury  on  contracts  in  Ireland.'  From  this  it  is  evident,  that  there  is  no  ground 
in  the  decision  for  the  wide  principle  contended  for.  The  quaere  thrown 
out,  merely  in  answer  to  an  illustrative  argument  used  by  counsel,  comes 
more  to  the  point ;  but  is  plainly  overruled.  Burrows  in  his  report  says, 
that  Lord  Mansfield  referred  to  a  case  before  Lord  Hardwicke  of  a  minor's 
stolen  marriage  at  Ostend  ;  the  validity  of  which  Lord  Hardwicke  doubted, 
and  ordered  to  be  tried  before  an  Ecclesiastical  Court ;  but  the  trial  was 
stopped  by  the  minor's  marrying  again  on  coming  of  age.  We  have 
looked  carefully  for  this  case,  and  have  no  doubt  Butler  and  Freeman 
(Ambl,  302)  is  the  one  referred  to.  It  had  been  decided  in  1756,  four  years 
before.  It  was  the  case  of  a  ward  married  at  Antwerp.  Lord  Hardwicke 
said  ;  '  This  is  the  first  case  under  the  late  Marriage  Act.  As  to  such  a 
marriage  ([  was  going  to  call  it  a  robbery)  there  is  a  door  open  in  the  sta- 
tute as  to  marriages  beyond  seas  and  in  Scotland.'  He  afterwards  goes 
on  lo  question  the  validity  of  the  marriage  :  '  It  is  said  by  witness,  that 
he  saw  them  married,  according  to  the  rites  and  ceremonies  of  the  Church 
of  England.  But  it  will  not  be  valid  here,  unless  it  was  so  by  the  laws  of 
the  country  where  it  was  had.'  The  father,  it  appears,  instituted  a  suit 
in  the  Ecclesiastical  Court  to  try  the  validity  according  to  the  foreign  law. 
This  case,  therefore,  so  far  from  supporting  Lord  Mansfield's  doubt,  as 
stated  in  the  margin  of  Blackstone's  report,  expressly  overrules  it.  It  is 
more  material  for  our  present  purpose,  as  being  the  first  case  under  the 
Marriage  Act.  The  Marriage  Act  was  passed  in  1753.  If  Lord  Hard- 
wicke had  thought,  that  before  that  act  there  was  a  principle  of  law  in 
operation,  that  a  party  going  abroad  to  evade  our  laws  could  not  set  up  the 


CH.  v.] 


MARRIAGE.  231 


second  marriage,  after  a  divorce,  in  Scotland,  from  a 
marriage,  originally   celebrated   in  England   between 


lex  loci  contractus,  but  that  the  new  act  had  altered  this,  he  could  hardly 
have  foiled  to  have  said  so.  He  treats  it,  that  the  new  statute,  by  leaving 
the  old  principle  of  lex  loci  contractus  untouched,  had  left  a  door  open  to 
evade  its  new  provisions  of  banns,  rites,  consent  for  minors,  &c. ;  not  had 
opened  a  new  door.  We  find  but  one  other  case  before  Lord  Hard  wicks 
bearing  on  the  subject.  It  is  Roach  v.  Garvan,  decided  in  1748.  (1  Ves. 
R,  159.)  It  is  material  as  showing  the  principles  of  law  as  to  foreign 
marriages  clearly  laid  down,  before  the  marriage  act  passed.  It  was  the 
case  of  a  ward  of  Court,  aged  only  eleven,  married  in  France  to  a  boy  of 
seventeen,  the  son  of  a  Frenchman.  Lord  liardwicke  laid  down,  that  the 
infant,  being  a  natural-born  subject,  could  not  renounce  her  allegiance. 
He  said  ;  '  The  most  material  consideration  is  the  validity  of  the  marriage. 
It  has  been  argued  to  be  valid  from  being  established  by  the  sentence  of  a 
court  in  France,  having  proper  jurisdiction.  And  it  is  true,  that  if  so,  it 
is  conclusive,  whether  a  foreign  court  or  not,  from  the  laws  of  nations  in 
such  cases  ;  otherwise  ths  rights  of  mankind  would  be  very  precarious  and 
uncerlain.'  Now  here,  if  Mr.  Burge  is  right,  Lord  Hardvvicke  was  called 
upon  to  fall  back  on  the  general  principle  Mr.  Burge  contends  for,  that 
the  subject,  though  broad,  unless  bona  fide  domiciled  there,  (which  in 
Mr.  Burge's  sense  of  domicil  was  not  the  case,)  could  not  avail  himself  of 
the  lex  loci  to  avoid  the  operation  of  our  law.  The  girl  here,  was  only 
eleven  years  old.  By  our  comnron  law,  as  stated  by  Mr.  Burge,  a  female 
under  twelve  could  not  contract  matrimony.  Indeed,  according  to  Sir 
Matthew  Hale,  the  attempt  would  have  subjected  the  party  to  a  conviction 
for  rape.  (1  Hall.  P.  C.  630  ;  and  4  Bla.  Com.  212.)  So  far  from  doing 
this,  in  committing  unreservedly  the  jurisdiction,  as  to  validity,  to  a  for- 
eign court,  he  lays  down  a  principle  quite  destructive  of  all  Mr.  Burge's 
doctrines,  as  to  bona  fide  domicil ;  because,  as  we  shall  presently  remark 
further,  if  that  principle  only  means  bona  fide,  so  far  as  required  by  the 
foreign  law,  it  amounts  to  nothing,  and  there  is  nobody  who  doubts  it. 
It  would  then  be,  by  common  consent,  one  of  the  incidents  bearing  on  the 
validity  of  the  marriage  according  to  the  lex  loci  contractus.  There  are 
few  opinions,  which  command  higher  respect  than  Mr.  Jacob's.  In  his 
very  learned  notes  appended  to  his  edition  of  Roper's  Husband  and  Wife 
he  takes  the  same  view.  He  says,  as  to  the  objection,  that  an  intention  to 
evade  our  law  may  affect  the  validity  of  the  foreign  contract ;  '  that, 
though  apparently  sanctioned  by  Lord  Mansfield,  it  has  not  prevailed, 
either  with  respect  to  marriages  in  Scotland,  or  with  respect  to 
marriages  in  other  places  out  of  England,  and  there  does  not  appear 
any  exception  to  the  rule,  that  a  foreign  marriage,  valid  according 
to  the  law  of  the  place    where  celebrated,    is  good  everywhere  else. 


232  CONFLICT   OF   LAWS.  [CH.  V. 

English  subjects,  is  void,  although   such  divorce  and 
second  marriage  would  be  unquestionably  good  by  the 


(2  Roper,  Husb.  &  Wife,  edit,  by  Jacob,  p.  495.)  It  must  be  observed, 
that  Mr.  Jacob  does  not  specifically  advert  to  objections  arising  from  affi- 
nity, or  from  any  prohibitory  rules  not  being  in  the  Marriage  Act.  The 
rule,  however,  is  evidently  older  than  the  Marriage  Act,  and  is  always 
found  without  a  limitation  from  the  first.  Except  the  case  of  legal  per- 
sonal disqualification  against  marrying  at  all,  such  as  Lolley's,  to  which 
we  shall  soon  advert,  we  know  but  of  one  country  (France),  where  the 
validity  of  a  foreign  marriage  between  its  own  subjects  is  tried  by  its  own, 
and  not  the  foreign  law.  French  subjects,  who  are  required  at  home  to 
obtain  the  consent  of  parents,  &c.  are  required  so  equally,  if  they  marry 
cut  of  France.  Did  such  a  broad  personal  rule  obtain  here,  there  would 
have  been  no  room  for  the  present  article  ;  and  it  is  to  such  a  result,  that 
we  are  addressing  ourselves,  unless  the  rules  of  restriction  can  be  so  nar- 
rowed, as  to  approve  themselves  to  the  moral  approbation  of  all  the  com- 
munity, minority  as  well  as  majority,  i.  e.  to  those  cases  of  affinity,  which, 
by  the  common  consent  of  the  country  would*  be  discountenanced,  viz. 
affinities  is  one  degree,  as  step-father  and  step-daughter.  We  will  now 
go  on  to  examine  the  supposed  second  rule,  as  to  a  foreign  bona  fide  domi- 
cil  being  required.  Our  English  supposed  limitation  of  the  general  rule, 
is  not,  as  we  have  seen,  treated  by  such  of  the  civilians  as  have  espoused 
these  views,  as  an  absolute  personal  rule,  but  one  merely  in  fraudem 
legis  ;  and  they  therefore  attach  to  the  limitation  this  sub-limitation,  that 
the  qualification  will  be  removed  by  a  sufficient  domicil  abroad.  But  suffi- 
cient by  what  law?  The  sufficiency  according  to  the  requirements  of  the 
foreign  law  is  admitted  on  all  sides.  Our  law  as  to  domicil  proceeds  on 
quite  different  grounds.  But  supposing  our  law  required  a  year's  residence 
tomake  a  domicil  in  any  place,  and  the  law  of  that  place  required  two 
years,  and  also  required  domicil  to  ratify  the  contract  of  marriage  within 
it,  it  is  evident,  that  we  here,  trying  the  validity  of  such  a  marriage, 
should  require  the  two  years'  residence  to  be  proved.  These  civilians 
admit  this,  and  require  us  to  fulfil  the  foreign  law  in  all  cases.  But  then 
they  require  a  sufficient  domicil  by  our  law  as  well.  They  would  split 
the  unity  of  the  contract,  and  determine  it  partly  by  one  law,  and  partly  by 
the  other.  They  require  two  sorts  of  domicil  to  make  up  the  marriage 
contract  —  the  one  by  the  law  abroad  to  get  over  the  lex  loci,  the  one  by 
our  law,  not  as  essential  to  the  contract,  but  as  evidence  of  the  bona  fides 
of  the  contract,  and  to  get  over  the  quasi  personal  disability  they  suppose, 
i.  e.  the  suspicion  of  intention  to  evade  our  supposed  prohibitory  law.  It 
is  clear  the  bona  fide  domicil,  they  would  exact,  must  be  by  way  of  evi- 
dence, and  evidence  only.  But  if  so,  how  can  it  be  an  essential  ?  Parties 
may  marry  without  any  intended  fraud  on  their  own  law,  where  notdomi- 


CH.  v.]  MARRIAGE.  233 

law  of  Scotland.^  So  that,  here,  there  may  be  two  law- 
ful wives  of  the  party,  living  at  the  same  time,  in  dif- 
ferent countries,  and  two  fomilies  of  children,  one  of 
which  may  be  deemed  legitimate  by  the  law  of  the  one 
country,  and  illegitimate  by  the  law  of  the  other.~  It 
is  easy  to  see,  what  various  difficulties  may  grow  out  of 
such  a  state  of  things.  A  son,  by  the  second  marriage, 
may  be  entitled  to  the  whole  real  and  personal  estate 
of  the  father  in  Scotland,  and  incapable  of  touching 


ciled  to  the  satisfaction  of  the  civilians;  or,  what  is  more  likely,  may 
become  so  domiciled  with  a  positive  intention  to  evade  their  own  law. 
They  may  get  naturalized  abroad,  move  their  property  there,  do  every 
thing,  which  would  show  a  domicil  with  regard  to  the  laws  about  personal 
estate,  and  yet  all  the  while  it  may  be  capable  of  clear  proof,  that  they 
did  this  only,  because  they  chose  to  be  married,  and  were  not  permitted  to 
be  married  here,  and  that  they  intended,  and  did  all  for  evasion.  They 
may  intend  a  permanent  residence  also,  and  merely  because  they  do  not 
like  the  English  law  as  to  affinity.  What  would  the  civilians,  who  coun- 
tenance these  refinements,  say  to  this  case  1  Their  notion  seems  to  have 
arisen  from  viewing  the  law,  as  an  individual,  whose  honor  is  to  be  vindi- 
cated, and  who  is  to  be  treated  with  at  least  outward  show  of  observance 
and  respect.  They  make  it,  let  it  be  observed,  not  a  principle  of  English 
law  merely,  but  of  general  law  ;  though  they  can  find  no  instance  in  any 
one  country  to  support  it,  except  Lord  Mansfield's  manifestly  erroneous 
dictum  in  a  bill  of  exchange  case.  To  us  the  whole  scheme  seems  alto- 
gether insupportable.  A  law,  we  should  think,  is  either  local,  or  it  is  per- 
sonal, and  any  thing  between  we  cannot  comprehend.  If  it  were  the  case 
of  a  foreigner's  marriage  here,  would  they  ask,  if  he  came  here  in  evasion 
of  his  own  law  1  Or  would  they  not  rather  say  with  Fergusson,  '  A  party 
domiciled  here  cannot  be  permitted  to  import  a  law  peculiar  to  his  own 
case.'  (Ferg.  on  Mar.  and  Div.  399.) "  See  also  Huberus,  Lib.  1,  tit.  3, 
De  Conflictu  Legum,  §  13  ;  Paul  Voet,  de  Statut.  §  9,  eh.  2,  n.  4,  p.  263, 
edit.  1715;  Id.  p.  319,  edit.  1661.  Lord  Brougham,  in  Warrender  v. 
Warrender,  9  Bligh,  R.  129,  130,  manifestly  considered,  that  the  doctrine, 
that  a  marriage  in  a  foreign  country  was  void,  if  it  was  a  fraud  upon  the 
law  of  ihc  domicil  of  the  parties,  was  not  maintainable' in  point  of  law. 

1  Lolley's  Case,  1  Russ.  &  Ryan,  Cas.  236.     See  Warrender  v.  War- 
render,  8  Bligh,  R.  891 ;  ante,  ^  86,  88  ;  post,  ^  215  to  ^  226. 

2  Beazley  v.  Beazley,  3  Hagg.  Eccl.  R.  639 ;  Rex  v.  Lolley,  1  Russ.  & 
Ryan,  Cas.  236. 

20* 


234  CONFLICT   OF   LAWS.  [CH.  V. 

either  in  England.  The  Massachusetts  doctrine  escapes 
from  these  incongruities ;  and  appears  to  be  founded 
upon  a  liberal  basis  of  international  policy,  which  deems 
it  far  better  to  support  marriages,  celebrated  in  a  foreign 
country,  as  valid,  when  in  conformity  with  the  laws  of 
that  country,  although  the  rule  may  produce  some 
minor  inconveniences,  than,  by  introducing  distinctions 
as  to  the  designs,  and  objects,  and  motives  of  the  par- 
ties, to  shake  the  general  confidence  in  such  marriages  ; 
to  subject  the  innocent  issue  to  constant  doubts  as  to 
their  own  legitimacy ;  and  to  leave  the  parents  them- 
selves to  cut  adrift  from  their  solemn  obligations,  when 
they  may  become  discontented  with  their  lot. 

§  124  «.  It  is  no  answer  to  this  reasoning  to  say,  that 
every  nation  has  a  right,  at  its  pleasure,  to  impose  any 
restraints  and   prohibitions  upon  the   marriages  of  its 
own  subjects,  whether  they  marry  within  or  without  its 
own  territory.     Admitting  this  to  be  true  in  the  fullest 
extent,  to  which  it  can  justly  be  claimed  in  virtue  of 
national  sovereignty,  it  must  be  quite  as  true,  and  quite 
as  obvious,  that  no  other  nation  is  bound  to  recognize 
those  restraints,  and  those  prohibitions,  as  obligatory 
upon  such  subjects,  while  they  are  domiciled  within  its 
own  territory,  or  when  they  have  contracted  marriages 
there,  according  to  the  laws   thereof     All  such  local 
municipal  restraints  and  prohibitions,  must,  under  such 
circumstances,  necessarily  tend  to  mutual  embarrass- 
ment and   confusion  in  the  intercourse  between  such 
nations.     The  very  object  of  the  rule,  arising  from  the 
comity  of  nations,  and  a  sense  of  the  importance  and 
public  policy  of  giving  to  marriages  everywhere  the 
most  solemn  and  binding  obligation,  is  to  secure  all  na- 
tions against  such  a  conflict  of  laws.     If  France  has 
chosen  to  declare,  that  all  marriages  celebrated  by  its 


CH.  v.]  MARRIAGE.  235 

subjects  in  foreign  countries,  in  conformity  with  their 
laws,  but  not  according  to  its  own  laws,  shall  be  utterly 
void,  every  other  country  has  an  equal  right  to  decL-ire, 
that  such  marriages  shall  be  deemed  valid,  and  refuse  to 
submit  to  the  dictation  of  France.  France  may  at  home 
enforce  such  laws  upon  her  own  subjects  and  their  pro- 
perty, when  found  within  its  territory.  But  every  other 
nation,  by  whose  laws  the  marriages  celebrated  therein 
would  be  valid,  would  sustain  such  marriages,  and  treat 
the  claims  of  France,  as  an  usurpation,  founded  in  injus- 
tice, and  a  disregard  of  the  true  duty  and  policy  of  all 
civilized  nations  in  their  intercourse  with  each  other. 


236  CONFLICT    OF   LAWS.  [CH.  VI. 


CHAPTER  VI. 

MARRIAGES INCIDENTS  TO. 

§  125.  Having  considered  how  far  the  validity  of 
marriages  is  to  be  decided  by  the  law  of  the  place 
where  they  are  celebrated,  we  are  next  led  to  consider 
the  operation  of  foreign  law  upon  the  incidents  of  mar- 
riage. These  may  respect  either  the  personal  capacity 
and  powers  of  the  husband  and  wife,  or  the  rights  of 
each  in  regard  to  the  property,  personal  or  real,  ac- 
quired, or  held  by  both  or  either  of  them  during  the 
coverture.^ 

§  126.  The  jurisprudence  of  different  nations  con- 
tains almost  infinitely  diversified  regulations  upon  the 
subject  of  the  mutual  obligations  and  duties  of  husband 
and  wife,  their  personal  capacities  and  powers,  and  their 
mutual  rights  and  interests  in  the  property  belonging 
to,  or  acquired  by  each,  during  the  existence  of  the 
marriage;  and  the  task  of  enumerating  all  of  them 
would  be  as  hopeless  as  it  would  be  useless.  Before 
the  Revolution  there  were  in  France  a  multitude  of 
such  diversities  in  the  local  and  customary  law  of  her 
own  provinces ;  and  in  Germany,  and  the  states  of 
Holland  and  Italy,  and  the  vast  domains  of  Austria 
and  R-ussia,  the  like  diversities  existed,  and  probably 


1  See  on  the  subject  of  this  chapter,  1  Burge,  Comm.  on  Col.  and  For. 
Law,  Pt.  1,  eh.  6,  ^  1,  2,  p.  201  to  p.  2fi2  ;  Id.  ch.  7,  ^  1,  p.  262  to 
p.  276. 


CH.  VI.]  MARRIAGES INCIDENTS   TO.  237 

still  continue  to  exist.  Froland  has  enumerated  a  few 
of  these  diversities  and  by  way  of  illustrating  the  end- 
less embarrassments  arising  from  the  conflict  of  laws 
of  different  provinces  and  nations ;  ^  and  his  ample 
work  is  mainly  devoted  to  a  consideration  of  the  mixed 
questions,  arising  from  the  conjugal  relation,  as  affected 
by  different  laws  in  different  provinces  and  nations.  In 
some  of  the  French  provinces  before  the  Revolution,  a 
married  woman  had  a  separate  power  to  contract ;  in 
others  she  had  not."  In  Holland,  under  the  old  laws 
thereof  (for  it  is  unnecessary  to  consider  whether  they 
have  undergone  any  substantial  alteration  in  more 
recent  times)  the  husband  had  the  sole  power  to  dis- 
pose of  all  the  property  of  his  wife ;  and  she  was 
entirely  deprived  of  any  power  over  it.^  In  Utrecht 
her  consent  was  necessary,  if  there  were  not  children 
by  the  marriage  ;  and  in  some  other  places,  whether 
there  were  or  were  not  children.  In  Utrecht  the  hus- 
band and  wife  were  disabled  from  making  donations  to 
each  other;  in  Plolland  they  may  or  might  make 
them.^     In  some  states  there  is  a  community  of  pro- 


1  1  Froland,  M6moires,  ch.  1,  ^  7,  8. 

2  Id.;  Henry  on  Foreign  Law,  31.  See  also  1  Boullenois,  ch.  1. 
p.  421  ;  Id.  p.  467,  468;  Merlin,  Rupert.  Autoris.  Maritale,  ^  10. 

3  1  Burge,  Comm.  on  Col.  and  For.  Law,  Ft.  1,  ch.  7,  ^  2,  p.  276, 302. 

4  Rodenburg,  De  Divers.  Stat.  tit.  2,  ch.  5,  ^  9  ;  2  Boullenois,  Appx, 
p.  39. — It  may  be  useful  here  to  state,  (once  for  all,)  that,  in  referring 
to  the  laws  of  different  countries,  I  generally  state  them  as  they  formerly 
were,  without  any  attention  to  the  changes  which  they  may  actually  have 
undergone.  The  reasoning  of  the  foreign  jurists  upon  this  subject  would 
be  rendered  exceedingly  obscure,  and  sometimes  incorrect  in  any  other 
way  ;  and  the  object  of  this  work  is  not  so  much  to  show  what  particular 
conflicts  of  laws  may  now  arise  from  the  present  jurisprudence  of  a  par- 
ticular country,  as  to  illustrate  the  principles  which  different  jurists  have 
adopted  in  solving  questions  relating  to  the  conflicts  of  laws  generally. 
See  1  Burge,  Comm.  on  Col.  and  For.  Law,   Pt.  1,  ch.  7,  ^  2,  p.  27G  to 


238         .  CONFLICT    OF   LAWS.  [CH.  VL 

perty  between  husband  and  wife ;   in  others  none  ;  and 
in  others  again,  mixed  rights  and  qualified  claims/ 

§  127.  Boullenois  has  put  several  cases,  showing  the 
practical  difficulties  of  this  conflict  of  laws.  Suppose  a 
husband  domiciled  in  a  place  where  he  cannot  bind  his 
wife,  if  he  contracts  alone  and  without  her,  although 
she  is  under  his  marital  power  and  authority;  and  the 
husband  should  go  to,  and  contract  in  a  place,  where, 
by  reason  of  this  authority,  he  can  bind  his  wife  by 
binding  himself;  w"ill  the  latter  contract  bind  her? 
He  answers  in  the  negative ;  because  the  obligation  of 
the  wife  does  not  spring  from  the  nature  of  the  con- 
tract, nor  from  the  place  of  the  contract,  but  from  the 
marital  authority,  which  has  no  such  effect  in  the  place 
of  his  domicil.^  In  Brittany,  formerly,  when  a  husband 
and  wife  were  each  bound  in  soUdo  for  the  same  contract 
or  debt,  payment  was  to .  be  first  sought  out  of  the 
effects  of  the  husband.  But  in  Paris,  upon  a  like  con- 
tract, the  effects  of  the  husband  and  w^ife  were  formerly 
indiscriminately  bound.  Suppose,  then,  that  at  that 
period  married  persons,  domiciled  in  Brittany,  had  gone 
to  Paris  and  there  contracted,  or  that  married  persons 
domiciled  in  Paris  had  gone  to  Brittany  and  there  con 
tracted,  in  what  manner  should  the  creditor  seek  pay- 
ment ?  Boullenois  seems  to  have  held  that  in  such  a 
case  the  laws  were  to  be  followed,  which  regulate  the 
estate  and  condition  of  the  w^ife,  that  is  to  say,  the  laws 
of  her  domicil.^ 


p.  332,  where  there  will  be  found  a  summary  of  the  laws  of  Holland  on 
the  subject  of  this  chapter. 

^  1  Burge,  Comm.  on  Col.  on  For.   Law,  ch.  7,  ^  1  to  t^  8,  p.  262  to 
p.  561  ;    Henry  on  Foreign  Law,   ch.  1,   ^  3,   p.  10,  36,  note;    Id.  9 
1  Boull.  Obs.  15,  p.  193;  Id.  Princ.  G6n.  8,  p.  8. 

2  2  Boullenois,  Obs.  46,  p.  407.  3  Jd.  p.  468,  469. 


r,  ■ 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  239 

§  128.  It  is  hardly  possible  to  enumerate  the  different 
rules  adopted  in  the  customary  law  or  in  the  positive 
law  of  different  provinces  of  the  same  empire,  upon  the 
subject  of  the  rights  of  husband  and  wife.  In  some 
places  the  laws,  which  place  the  wife  under  the  author- 
ity of  her  husband,  extend  to  all  her  acts,  as  well 
to  acts  inter  vivos,  as  to  acts  testamentary.  In  others, 
the  former  only  are  prohibited.  In  some  places,  the 
consent  of  the  husband  is  necessary  to  give  effect  to 
the  contracts  of  the  wife.  In  others,  the  contract  is 
valid,  but  is  suspended  in  its  execution  during  the  life 
of  the  husband.  In  some  places,  the  wife  has  no  power 
over  the  administration  of  her  own  property.  In  others 
the  prohibition  is  confined  to  property  merely  dotal,  wnd. 
she  has  the  free  disposal  of  her  other  property,  which  is 
called  paraphernal} 

§  129.  But  not  to  perplex  ourselves  with  cases  of  a 
provincial  and  unusual  nature,  let  us  attend  to  the 
differences  on  this  subject  in  the  existing  jurisprudence 
of  two  of  the  most  polished  and  commercial  States  of 
Europe,  in  order  to  realize  the  variety  of  questions 
which  may  spring  up  and  embarrass  the  administration 
of  justice  in  the  tribunals  of  those  countries. 

§  130.  The  present  Code  of  France  does  not  under- 
take to  regulate  the  conjugal  association  as  to  property, 
except  in  the  absence  of  any  special  contract,  w^hich 
special  contract  the  husband  and  wife  may,  under  cer- 
tain limitations,  make,  as  they  shall  judge  proper. 
When  no  special  stipulations  exist,  the  case  is  governed 


1  2  Boullenois,  Obser.  32,  p.  11  ;  1  Domat,  B.  1,  tit.  9,  p.  16fi,  167; 
Id.  ^4,  p.  179,  180,  &c.  See  also  1  Froland,  M6m.  per  tot.;  Merlin, 
Repert.  Autoris.  Maritale,  §  10  ;  1  Barge,  Comm.  on  Col.  and  For.  Law, 
Pt.  I,  ch.  6,  ^  1,  p.  201  to  p.  244  ;  Id.  ch.  7,  §  1  to  §  7,  p.  262  to  p.  561. 


240  CONFLICT    OF    LAWS.  [CH.  VI. 

by  "what  is  denominated  the  rule  of  community,  Le 
regime  de  la  commiinaide.  This  community,  or  nuptial 
partnership,  generally  extends  to  all  the  movable  pro- 
perty of  the  husband  and  wife,  and  to  the  fruits,  in- 
come, and  revenues  thereof,  whether  it  is  in  possession, 
or  in  action,  at  the  time  of  the  marriage,  or  it  is  subse- 
quently g-cquired.  It  extends  also  to  all  immovable 
property  of  the  husband  and  wife  acquired  during  the 
marriage ;  but  not  to  such  immovable  property  as  either 
possessed  at  the  time  of  the  marriage,  or  which  came 
to  them  afterwards  by  title  of  succession,  or  by  gift.^ 
The  property  thus  acquired  by  this  nuptial  partnership, 
is  liable  to  the  debts  of  the  parties  existing  at  the  time 
of  the  marriage ;  to  the  debts  contracted  by  the  hus- 
band during  the  community,  or  by  the  wife  during  the 
community  with  the  consent  of  the  husband ;  and  to 
debts  contracted  for  the  maintenance  of  the  family,  and 
other  charges  of  the  marriage.  As  in  common  cases  of 
partnership,  recompense  may  be  claimed  and  had  for 
any  charges,  which  ought  to  be  borne  exclusively  by 
either  party.  The  husband  alone  is  entitled  to  adminis- 
ter the  property  of  the  community ;  and  he  may  alien, 
sell,  and  mortgage  it  without  the  concurrence  of  the 
wife.  He  cannot,  however,  dispose,  inter  vivos,  by  gra- 
tuitous title,  of  the  immovables  of  the  community,  or  of 
the  movables,  except  under  particular  circumstances ;  and 
testamentary  dispositions  made  by  him  cannot  exceed 
his  share  in  the  community.^  The  community  is  dis- 
solved by  natural  death,  by  civil  death,  by  divorce,  by 
separation  of  body,  or  by  separation  of  property.    Upon 


1  Code  Civil  of  France,  art.  1387  to  1408  ;  Id.  art.  1497  to  1541. 

2  Id.  art.  1409  to  1440. 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  241 

separation  of  body,  or  of  property,  the  wife  resumes  her 
free  administration  of  her  movable  property,  and  may 
alien  it.  But  she  cannot  alien  her  immovable  property 
without  the  consent  of  her  husband,  or  without  being 
authorized  by  law  upon  his  refusal.  Dissolution  of  the 
marriage  by  divorce  gives  no  right  of  survivorship  to 
the  wife  ;  but  that  right  may  occur  on  the  civil  death 
or  the  natural  death  of  the  husband.  Upon  the  death 
of  either  party,  the  community  being  dissolved,  the 
property  belongs  equally  to  the  surviving  party,  and  to 
the  heirs  of  the  deceased,  in  equal  moieties,  after  the 
due  adjustment  of  all  debts,  and  the  payment  of  all 
charges,  and  claims  on  the  fund.^ 

§  131.  Such  is  a  very  brief  outline  of  some  of  the 
more  important  particulars  of  the  French  Code,  in  re- 
gard to  the  property  of  married  persons,  in  cases  of 
community.  The  parties  may  vary  these  rights  by 
special  contract,  or  they  may  marry  under  what  is  called 
the  dotal  rule  Le  regime  dotal.  But  it  would  carry  us 
too  far  to  enter  upon  the  consideration  of  these  pecu- 
liarities, as  our  object  is  only  to  point  out  some  of  the 
more  broad  distinctions  between  the  English  and  the 
French  law,  as  to  the  effects  of  marriage. 

§  132.  In  regard  to  the  personal  rights,  and  capaci- 
ties, and  disabilities  of  the  parties,  it  may  be  stated, 
that,  independent  of  the  ordinary  rights  and  duties  of 
conjugal  fidelity,  succor,  and  assistance,  the  husband 
becomes  the  head  of  the  family ;  and  the  wife  can  do  no 
act  in  law  without  the  authority  of  her  husband.  She 
cannot,  therefore,  without  his  consent,  give,  alien,  sell, 
mortgage,  or  acquire  property.     No  general  authority. 


1  Code  Civil  of  France,  art.  1441  to  1496. 
21 


242  CONFLICT    OF   LAWS.  [CH.  VL 

even  though  stipulated  by  a  marriage  contract,  is  valid, 
except  as  to  the  administration  of  the  property  of  the 
wife.  But  the  wife  may  make  a  will  without  the  au- 
thority of  her  husband.  If  the  wife  is  a  public  trader, 
she  may,  without  the  authority  of  her  husband,  bind 
herself  in  whatever  concerns  her  business  ;  and  in  such 
case  she  also  binds  her  husband,  if  there  is  a  commu- 
nity between  them.' 

§  133.  If  we  compare  this  nuptial  jurisprudence, 
brief  and  imperfect  as  the  outline  necessarily  is,  with 
that  of  England,  it  presents,  upon  the  most  superficial 
examination,  very  striking  differences.  In  the  first 
place,  as  to  personal  rights,  capacities,  and  disabilities, 
the  law  of  England,  with  few  exceptions,  (which  it  is 
unnecessary  here  to  mention,)  places  the  wife  com- 
pletely under  the  guardianship  and  coverture  of  the 
husband.  The  husband  and  wife  are,  in  contemplation 
of  law,  one  person.  He  possesses  the  sole  power  and 
authority  over  the  person  and  acts  of  the  wife  ;  so  that, 
as  Mr.  Justice  Blackstone  has  well  observed,  the  very 
being,  or  legal  existence  of  the  wife,  is  suspended  dur- 
ing the  marriage,  or  at  least,  is  incorporated  and  con- 
solidated into  that  of  the  husband.^  For  this  reason,  a 
man  cannot  grant  any  thing  to  his  wife,  or  enter  into 
a  covenant  with  her  during  his  life,  though  he  may  de- 
vise to  her  by  will.  She  is  incapable  of  entering  into 
any  contract,  executing  any  deed,  or  doing  any  other 
valid  act  in  her  own  name.  All  suits,  even  for  personal 
injuries  to  her,  must  be  brought  in  the  name  of  her 


1  Code  Civil  of  France,  art.  212  to  226,  art.  1426  ;  2  TouUier,  Droit. 
Civ.  art.  618  to  655. 

2  1  Bl.  Coram.  441 ;  2  Story,  Eq.  Jurisp.  ch.  36,  §  1366  to  1429. 


CH.  VI,]  MARRIAGES  —  INCIDENTS   TO.  243 

husband  and  herself,  and  with  his  concurrence.  Upon 
the  marriage,  the  husband  becomes  liable  to  all  her 
debts  ;  but  neither  the  wife,  nor  her  property,  is  liable 
for  any  of  his  debts.  In  the  Roman  law,  and  (as  we 
have  seen)  in  the  French  law,  the  husband  and  wife  are, 
for  many  purposes,  considered  as  distinct  persons,  and 
may  have  separate  estates,  contracts,  rights,  and  inju- 
ries.^ 

§  134.  In  respect  to  property,  in  England,  the  hus- 
band, by  the  marriage,  independent  of  any  marriage 
settlement,  becomes  ipso  facto  entitled  to  all  her  per- 
sonal or  movable  property  of  every  description,  in  pos- 
session, and  in  action,  and  may  dispose  of  it  at  his 
pleasure.  He  has  also  a  freehold  in  her  real  estate 
during  their  joint  lives ;  and  if  he  has  issue  by  her, 
and  survives  her,  he  has  a  freehold  also  during  his  own 
life  in  her  real  estate ;  and  an  exclusive  right  to  the 
whole  profits  of  it  during  the  same  period.  There  is 
not  any  community  between  them  in  regard  to  proper- 
ty, as  in  the  French  law.  Upon  his  death  she  is  simply 
entitled  to  dower  of  one  third  of  his  real  estate  during 
her  life  ;  and  he  may,  at  his  pleasure,  by  a  testament- 
ary disposition,  deprive  her  of  all  right  and  interest  in 
his  personal  or  movable  estate,-  although  the  whole  of 
it  came  to  him  from  her  by  the  marriage.  During  the 
coverture  she  is  also  incapable  of  changing,  transfer- 
ring, or  in  any  manner  disposing  of  her  real  estate,  ex- 
cept with  his  concurrence ;  and  she  is  incapable  of 
making  an  effectual  will  or  testament.^ 


i  1  Bl.  Comm.  441  ;  2  Stoiy,  Eq.  Jurisp.  ch.  36,  §  1366  to  ^  1429  •, 
1  Brown,  Civ.  Law,  82  ;  2  Kent,  Comm.  Lect.  28,  p.  129,  &c.  3d  edit. 

2  2  Kent,  Comm.  Lect.  28,  p.  129,  &c.  3d  edition  ;  2  Black.  Comm. 
433. 


244  CONFLICT    OF   LAAVS.  [CH.  VI. 

§  135.  Now,  these  differences,  (which  are  by  no  means 
all  which  exist,)  exemplified  in  the  French  laws  and  in 
the  English  laws,  are,  for  the  most  part,  the  very  same 
as  exist  in  America  between  the  States  settled  under 
the  common  law,  and  those  settled  under  the  civil  law ; 
between  those  deriving  their  origin  from  Spain  or 
France,  and  those  deriving  their  origin  from  England.^ 
We  may  see  at  once,  then,  upon  a  change  of  domicil, 
or  even  of  temporary  residence,  from  a  state  or  coun- 
try governed  by  the  one  law,  to  another  governed  by 
the  other  law,  what  various  questions  of  an  interesting 
and  practical  nature  may,  nay  must,  grow  up  from  this 
conflict  of  local  and  municipal  jurisprudence. 

§  135  a.  The  subject  naturally  divides  itself  into  two 
heads ;  first,  the  effect  of  the  marriage  upon  the  per- 
sonal capacities  and  incapacities  of  the  wife,  or  in  other 
words,  her  disabilities  and  her  powers,  consequent  upon 
the  marriage  ;  and  secondly,  the  effect  of  the  marriage 
upon  the  rights  and  interests  of  the  husband  or  wife, 
or  of  both  of  them,  in  the  property  belonging  to  them 
at  the  time  of  the  marriage,  or  subsequently  acquired 
by  them.  We  will  examine  them  under  these  two  se- 
parate heads,  although  (as  we  shall  presently  see)  some 
of  the  considerations  applicable  to  them  mutually  run 
into  each  other. 

§  136.  And  in  the  first  place,  as  to  the  capacities  and 
disabilities  of  the  wife.  It  is  extremely  difficult  upon 
the  subject  of  the  personal  capacities  and  disabilities  of 
the  wife  to  lay  down  any  satisfactory  rule,  as  to  the 
extent  to  which  they  are  or  ought  to  be  recognized  by 


1  2  Kent,  Comra.  Lect.  28,  p.  183,  and  note,  3d  edit.  See  1  Domat, 
B.  1,  tit.  9;  Id.  tit.  10.  See  Christy,  Louisiana  Digest,  art.  Husband  and 
Wife,  and  Louisiana  Code,  art.  121  to  art.  133. 


CH.  Vl]  marriages INCIDENTS   TO.  245 

foreign  nations.  In  general,  she  is  deemed  to  have  the 
same  domicil  as  her  husband ;  and  she  can  during  the 
coverture  acquire  none  other,  stio  Jure}  Her  acts,  done 
in  the  place  of  her  domicil,  will  have  validity  or  not,  as 
they  are,  or  are  not,  valid  there.  But  as  to  her  acts 
done  elsewhere,  there  is  much  room  for  diversity  of 
opinion  and  practice  among  nations.  We  have  seen, 
that  many  of  the  civilians  and  jurists  of  continental 
Europe  hold,  that  the  capacity  and  incapacity  of  mar- 
ried women,  as  in  other  cases  of  the  personality  of  laws, 
accompany  them  everywhere,  and  govern  their  acts.^ 
And  Mr.  Chancellor  Kent  has  said,  that  as  personal 
qualities  and  civil  relations  of  a  universal  nature,  such  as 
infancy  and  coverture,  are  fixed  by  the  law  of  the  do- 
micil, it  becomes  the  interest  of  all  nations  mutually  to 
respect  and  sustain  that  law.^  This  is  true  in  a  general 
sense.  But  every  nation  will  judge  for  itself,  what  its 
own  interest  requires,  and,  in  framing  its  own  jurispru- 
dence, will  often  hold  acts  valid  within  its  own  territo- 
ries, which  the  laws  of  a  foreign  domicil  might  prohibit, 
or  might  disable  the  parties  from  doing. 

§  137.  In  considering  this  subject,  it  is  material,  at 
least  so  far  as  foreign  jurists  are  concerned,  to  distin- 
guish between  cases,  where  there  has  been  a  change  of 
domicil  of  the  parties,  and  where  there  has  not  been 
any  such  change  of  domicil.  Where  the  domicil  of 
marriage  remains  unchanged,  the  acts  of  the  wife,  and 
her  power  over  her  property  in  a  foreign  country,  are 


1  Ante,  ^  46.  See  on  this  subject,  1  Burge,  Comm.  on  Col.  and  For. 
Law,  Pt.  ],  ch.  6,  ^  2,  p.  244  to  p.  262. 

2  See  ante,  ^  51,  55,  56,  57,  58,  60  ;  Henry  on  Foreign  Law,  p.  50  ; 
Fergusson  on  Marr.  and  Div,  334  to  336  ;  Merlin,  Rupert.  Autoris.  Ma- 
ritale,  §  10. 

3  2  Kent,  Comm.  Lect.  39,  p.  419,  3d  edit. 

21* 


246  CONFLICT    OF  LAWS.  [CH.  VL 

held  by  many  foreign  jurists,  to  be  exclusively  governed 
by  the  law  of  her  domicil ;  in  other  words,  her  acts  are 
valid,  or  not,  as  the  law  of  her  domicil  gives  her  capa- 
city or  incapacity  to  do  them.^  And  the  rule  is  ap- 
plied to  her  immovable  property,  as  well  as  to  her  mov- 
able property.  Thus,  if  by  the  law  of  her  domicil  she 
cannot  alien  property,  or  cannot  contract,  except  with 
the  consent  of  her  husband,  she  cannot  alien  her  pro- 
perty, and  cannot  contract,  without  such  consent,  in  a 
foreign  country,  where  no  such  restriction  exists.^  But 
suppose  that  the  parties  afterwards  remove  to  a  new 
domicil,  where  the  consent  of  the  husband  is  not  neces- 
sary, is  the  law  of  the  new  domicil,  as  to  the  capacity 
of  the  wife,  to  prevail,  or  that  of  the  matrimonial  domi- 
cil ?  This  is  a  question  upon  which  foreign  jurists  have 
been  greatly  divided  in  opinion.^ 

§  138.  We  may  illustrate  this  distinction  by  a  few 
examples.  Thus,  for  example,  the  law  of  England  dis- 
ables a  married  woman  from  making  a  will  in  favor  of 
her  husband,  or  any  other  person ;  the  law  of  France 
allows  it.  Suppose  a  husband  and  wife,  married  in  and 
subjects  of  England,  should  temporarily  or  permanently 
become  domiciled  in  France ;  would  a  will  of  the  wife 
in  France,  in  regard  to  her  property  in  England,  made 
in  favor  of  her  husband  or  others,  be  held  valid  in  Eng- 
land?^    Many  foreign  jurists,  among  whom  may  be 


1  Ante,  ^  51  to  55,  ^  57,  64,  65  ;  post,  ^  141. 

2  Merlin,  Rupert.  Autoris.  Maritale,  ^  10,  art.  2  ;  Pothier,  Cout.  d'Or- 
16ans,  ch.  1,  n.  7,  15  ;  ante,  ^  51  to  54,  ^  04,  65,  69  ;  Le  Breton  v.  Miles, 
8  Paige,  R.261. 

3  See  Merlin,  Repertoire,  Effet  R6troactif,  ^  2,  3,  art.  5 ;  Autorisation 
Maritale,  ^  10  ;  ante,  ^  55  to  62.  See  also  1  Burge,  Coram,  on  Col.  and 
For.  Law,  Pt,  1,  ch.  6,  ^  2,  p.  244  to  p.  2G2. 

4  See  Merlin,  R6pert,  Testament,  ^  1,  5,  art.  1,  2,  p.  309  to  p.  319. 


CH.  VI.]  MARRIAGES  —  INCIDENTS   TO.  247 

enumerated  Hertius,  Paul  Voet,  John  Voet,  Burgundus, 
Rodenburg,  Pothier,  and  Merlin,  hold  the  opinion  that 
the  law  of  the  new  domicil,  must  in  all  cases  of  a  change 
of  domicil,  govern  the  capacities  and  rights  of  property 
of  married  women,  as  well  as  their  obligations,  acts,  and 
duties.^  Froland  (it  should  seem)  would  answer  this 
particular  question  upon  principle  in  the  affirmative,  as 
a  mere  question  of  capacity  or  incapacity,  or  status,  of 
the  wife ;  for  he  holds,  that  the  capacity  or  incapacity 
of  married  women  to  do  things  changes  with  their  do- 
micil ;  and  that  acts,  valid  by  the  law  of  their  original 
domicil,  if  done  in  a  new  domicil,  by  whose  laws  they 
are  void,  are  to  be  deemed  nullities.^  Thus,  he  says, 
that  a  married  woman,  who  is  incapable  by  the  law  of 
her  domicil,  where  the  Roman  law  {Droit  Ecrit)  prevails, 
of  entering  into  a  suretyship  for  another,  by  the  Senatiis 
consiiltiim  Velleianiim,  or  of  contracting  with  her  husband, 
as  in  Normandy,  if  she  goes  to  reside  at  Paris,  where 
no  such  law  exists,  is  there  deprived  of  that  exception. 
And,  on  the  other  hand,  a  woman  married  and  living  at 
Paris,  and  afterwards  going  to  reside  in  Normandy,  or 
in  any  other  country,  where  the  Roman  law  prevails 
[Droit  Ecrit),  loses  her  capacity  to  enter  into  any  such 
contract,  which  she  previously  possessed.^    Yet  Froland 


1  Ante,  ^  55  to  62;  post,  ^  140,  141.  See  also  1  Burge,  Comm.  on 
Col.  and  For.  Law,  Pt.  1,  ch.  6,  ^  2,  p.  253  to  p.  261, 

2  1  Froland,  M6m.  172  ;  ante,  \  55. 

3  1  Froland,  M6m.  172;  1  Boullenois,  Obser.  4,  p.  61  ;  2  Boullenois, 
Obser.  32,  p.  7,  13.  Froland  has  some  subtile  distinctions  on  this  subject, 
which,  to  say  the  least  of  them,  are  not  in  a  practical  sense  very  clear. 
Lest  I  should  misstate  the  purport  of  his  remarks,  I  will  quote  them  in  the 
original,  having  already  referred  to  them  in  another  place.  "Quand  il 
s'agit  de  I'etat  universe!  de  la  personne,  abstraction  faite  de  toute  matiere 
r^elle,  abstracle  ab  omni  materia  reali,  en  ce  cas  le  statut,  qui  a  commence 


248  ,    CONFLICT    OF   LAWS.  [CH.  VL 

has  in  some  other  places  made  distinctions,  and  insisted 
on  a  different  rule,  as  applicable  to  the  rights  of  mar- 
ried women  in  the  property  of  their  husbands,  holding 
that  those  rights  are  governed  by  the  law  of  the  place 
of  the  marriage,  rather  than  by  that  of  the  subsequent 
actual  domicil.^ 

§  139.  Other  foreign  jurists,  however,  have  given  a 
different  response  to  the  general  question  ;  for  we  have 
already  seen,  that  in  regard  to  personal  laws,  there  is 
much  conflict  of  opinion  among  them,  how  far  these 
laws  are  affected  by  any  change  of  domicil.^  Huberus 
(as  we  have  seen)  holds  a  somewhat  modified  opinion.^ 
Bouhier  maintains  the  opinion  in  the  broadest  terms, 
that  in  respect  to  the  rights  derived  from  the  marital 
power  (Puissance  mmitale\  the  law  of  the  matrimonial 
domicil  determines  the  state  or  condition  of  the  wife, 


a  fixer  sa  condition,  conserve  sa  force  et  son  authority,  et  la  suit  par  tout 
en  quelque  endroit,  qu'elle  aille. — Mais  quand  il  est  question  de  I'habilete 
ou  inhabilet6  de  la  personne,  qui  a  chang6  de  domicile,  a /aire  une  certaine 
chose,  alors  le  statut,  qui  avoit  r^gle  son  pouvoir,  tombe  entierement  a  son 
6gard,  et  cede  tout  son  empire  a  celui  dans  le  territbire  duquel  elle  va  de- 
meurer."  1  Froland,  M6m.  171,  172  ;  ante,  ^  55.  See  2  Boullenois, 
Observ.  32,  p.  7,  to  p.  10;  Bouhier,  Cout.  de  Bourg.  ch.  22,  ^  6  to  14  ; 
Id.  §  30  to  38;  Id.  ^  148,  149. 

1  1  Froland,  M6m.  Pt.  2,  ch.  4,  p.  340  to  p.  408 ;  2  Boullenois,  Obser. 
32,  p.  22,  23,  29. 

2  See  ante,  ^  55  to  ^  02  ;  1  Boullenois,  Observ.  13,  p.  187,  188  to  p. 
196  ;  Id.  p.  200  ;  2  Boullenois,  Observ.  32,  p.  2  ;  Id.  Observ.  32,  p.  14, 
15,  17,  19  to  Id.  Observ.  37,  p.  204  ;  Rodenburg,  De  Div.  Stat.  tit.  2,  ch. 
1,^3;  Id.  Pt.  2,  ch.  1,  ^  1 ;  2  Boullenois,  Appx.  p.  12  ;  Id.  55,  56,  and 
2  Boullenois,  Observ.  32,  p.  22  to  p.  28  ;  Henry  on  Foreign  Law^,  p.  50, 
51 ;  Merlin  Rupert.  Autoris.  Maritale,  ^  10  ;  Id.  Effes  Retroactif,  ^  3,  n.  2, 
art.  3  ;  Bouhier,  Cout.  de  Bourg.  ch.  23,  ^  4  to  ^  108,  and  especially^  67 
and  68;  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  6,  ^  2,  p.  253 
to  p.  262. 

3  Ante,  ^60,  61;  post,  §145;  Huberus,  Lib.  1,  tit.  3,  De  Conflict. 
Leg.  §  12,  13  ;  Id.  §  9. 


CH.    VI.]  MARRIAGES INCIDENTS   TO.  249 

and  by  consequence  the  extent  of  the  marital  authority ; 
and  this  state  or  condition  of  the  wife  being  once  fixed, 
cannot  be  afterwards  changed  by  any  change  of  domi- 
cil.i  Dumoulin  seems  to  have  entertained  the  same 
opinion.^  Merlin  also  at  one  time  bent  the  whole 
strength  of  his  acknowledged  ability,  to  establish  the 
doctrine,  that  the  law  of  the  matrimonial  domicil,  and 
not  of  the  new  domicil,  as  to  the  capacity  and  inca- 
pacity of  the  wife,  ought  to  prevail.  He  reasoned  it 
out  principally  in  his  examination  of  the  subject  of  the 
marital  power,  or  the  incapacity  of  the  wife,  according 
to  certain  local  laws,  to  do  any  valid  act,  make  any  con- 
veyance, or  engage  in  any  contract,  without  the  consent 
and  authorization  of  her  husband.  And  he  then  held, 
that  this  incapacity  is  not  changed  by  a  change  of  do- 
micil  to  a  place,  in  whose  laws  it  has  no  existence.^ 
After  maintaining  this  opinion  (as  he  himself  says)  for 
forty  years,  he  has  recently  changed  it,  and  adhered 
to  the  doctrine,  that  the  law  of  the  new  domicil  ought 
to  govern.^  In  discussing  the  nature  and  extent  of  the 
parental  authority,  conferred  by  the  domicil  of  birth,  in 
regard  to  foreign  property,  he  seems  to  have  been  aware 
of  the  difficulties  of  his  early  doctrine  ;  and  he  has  said, 
with  great  truth,  that  to  put  an  end  to  all  the  difficul- 
ties of  such  cases,  it  is  necessary  to  make  a  uniform 
law,  not  for  France  only,  but  for  the  world ;  for  the  set- 
tlement of  a  foreigner  in  France,  or  of  a  Frenchman  in 


1  Bouhier,  Cout.  de  Bourg.  ch.  22,  ^  22  to  27  ;  Id.  §  45  to  47  ;  Id.  ^  48 
to  66  ;  Id.  ^  69,  70  ;  Id.  ^  79,  80,  82,  83  ;  Id.  §  89,  90  ;  Id.  ^  147. 

2  Molin.  Oper.  Comment,  ad  Cod.  Lib.  1,  tit.  1,1.  1 ;  Conclus.  De  Sta- 
tutis.  Tom.  3,  p.  555,  edit,  1681. 

3  Bouhier,  Cout.  de  Bourg.  ch.  22,  §  22  to  32,  ^  45. 

4  Merlin,  R6pert,  EfFet  R6troactif,  ^  3,  2,  art.  5,  p.  15  ;  Id.  Autorisa- 
lion  Maritale,  ^  10,  art.  4,  p.  243,  244  ;  Id.  Majority,  ^  5 ;  ante,  ^  58,  59. 


250  CONFLICT    OP    LAWS.  [CH.  VI. 

a  foreign  countiy,  would  at  once  raise  them  anew,  not- 
withstanding all  the  regulations  of  the  present  Civil 
Code  of  France.^  His  reasoning  upon  the  testamentary 
power,  and  the  manner,  in  which  it  is  affected  by  the 
sitiis  of  the  property,  also  affords  very  strong  proof  of 
the  intrinsic  infirmity  of  all  general  speculations  on  this 
subject.2 

§  140.  It  has  been  already  intimated,  that  the  oppo- 
site opinion  has  been  maintained  by  many  jurists.  Let 
us  briefly  refer  to  the  opinions  of  a  few  of  them.  Her- 
tius  has  put  the  following  case.  By  the  law  of  Utrecht 
married  persons  are  incapable  of  making  a  will  of  pro- 
perty in  favor  of  each  other ;  not  so  in  Holland.  Is 
such  a  will  of  property  in  Utrecht,  made  by  married 
persons  in  Holland  valid  ?  Or,  e  contra,  is  such  a  will, 
made  by  married  persons  in  Utrecht,  of  property  in  Hol- 
land, valid  ?  He  answers  the  former  question  in  the 
negative,  and  the  latter  in  the  affirmative.^ 

§  140  a.  The  language  of  Burgundus  is  still  more 
direct,  he  affirming  in  every  case  of  this  sort,  as  to  the 
rights  and  powers  of  the  husband  and  wife,  that  they 
are  regulated  by  the  law  of  the  new  domicil.  Proinde, 
lit  sciamiis,  uxor  in  potestate  sit  mariti,  necne,  qua  cetate  mi- 
nor contrahere  possit,  et  ejusmodi.  respicere  oportet  ad  legem 
ciijuscpie  domicilii.  Hcec  enim  imprimit  qucUitatem  personam, 
atque  adeo  naturam  ejus  afficit,  ut  qiiocunque  terrarum  sit 
transitura,  incapacitatem  domi  adeptam,  nan  aliter  qiiam 
cicatricem  in  corpore  foras  circumferat.     Consequenter  di- 


J  Merlin,  R6pert.  Puissance  Paternelle,  ^  7,  art.  1,  2,  3. 

2  Id.  Testament,  H'  §  ^  ^rt.  1,  2,  p.  309  to  p.  319. 

3  Hertii,  Opera,  De  Collis.  Leg.  ^  4,  p.  142,  ^42,  43,  edit.  1737  ;  Id. 
p.  201,  edit.  1716. 


OH.  VI.]  MARRIAGES INCIDENTS   TO.  251 

cetmis,  si  midaverit  domicilium  persona,  novi  domicilii  condi- 
iionem  induere} 

§  141.  Rodenburg  has  distinguished  the  cases  on  this 
subject  into  two  sorts;  (1)  those  in  which  there  is  no 
change  of  domicil  of  the  married  parties  ;  (2)  and  those 
in  which  there  is  a  change  of  domicil.  In  the  former 
case  he  holds,  that  the  capacity  and  incapacity  by  the 
law  of  the  domicil  extends  everywhere.  In  the  latter 
case,  that  the  capacity  and  incapacity  of  the  new  domi- 
cil attach.^  So  that,  according  to  him,  the  disabilities 
of  a  wife  by  the  law  of  her  domicil  attach  to  all  her 
acts,  wherever  done,  at  home  or  abroad,  as  long  as  the 
domicil  exists.^  But  upon  a  hond  fide  change  of  domi- 
cil by  her  husband,  she  loses  all  disabilities,  not  exist- 
ing by  the  law  of  the  new  domicil,  and  acquires  all  the 
capacities  allowed  by  the  latter.^  Hence,  if  a  husband, 
who  by  the  law  of  his  domicil  has  his  wife  subject  to 
his  marital  authority,  changes  his  domicil  to  a  place, 
where  no  such  law  exists,  or  e  contra,  if  he  changes  his 
domicil  from  a  place,  where  the  wife  is  exempt  from  the 
marital  power,  to  one  where  it  exists  ;  in  each  case  the 
wife  has  the  capacity  or  incapacity  of  the  new  domicil. 
Fac,  igitur,  viriim,  qui  per  leges  loci,  ubi  degit,  uxor  em  ha- 
heat  in  potestate,  collocare  domicilium  alio,  uhi  in  pot  es- 
tate, virontm  itxores  non  sunt ;  vel  vice  versa.  Dicen- 
dumne  erit,  induere  uxor  em  potest atem  qua  priiis  liber- 
dta,  et  exuere,  cui  alUgata  est  ?  In  affirmationem  sententiam 
deduci  videmur  per  iradita  Burgundi.  Et  recte  ;  personce 
enim  status  et  conditio,  cum  iota  regatur  a  legibiis  loci,  cui 


1  Burgundus,  Tract.  2,  n.  7,  p.  61. 

2  Rodenburg,  de  Div.  Stat.  tit.  2,  ch.  1,^1;  Id.  Pt.  2,  ch.  1,  §  1 ;  Id. 
ch.  4,  §  1 ;  2  BouUenois,  App.  p.  10,  11 ;  Id.  p.  55,  56  ;  Id.  p.  63. 

3  Ibid.  4  Ibid, 


252  CONFLICT    OF   LAWS.  [CH.  VI. 

ilia  sese  i^er  domiciliwn  suhdiderit,  idiqiie  mutato  domicilio, 
midari  necesse  est  personce  conditionem}  Boullenois  holds 
on  this  point  the  same  opinion.^  Rodenburg  puts  ano- 
ther case.  By  the  law  of  Holland  married  persons  may 
make  a  will  in  favor  of  each  other ;  by  the  law  of 
Utrecht,  not.  Suppose  a  man  and  wife,  who  are  mar- 
ried in  Holland,  move  to  TJtrecht,  is  the  will  between 
them,  previously  made,  good  ?  And  he  decides  in  the 
negative.^ 

§  142.  Boullenois,  however,  has  himself  put  a  case, 
which  he  seems  to  decide  upon  a  ground,  which  breaks 
in,  in  some  measure,  upon  the  general  doctrine.  He 
supposes  the  case  of  a  woman  domiciled,  and  married 
in  a  country,  using  the  Roman  law  {Droit  Ecrit,)  to  a 
man  belonging  to  the  same  country.  She  has  the  right 
and  capacity  by  that  law  to  enjoy  her  parapliernal 
property  there,  and  to  alienate  it  independently  of  her 
husband,^  and  without  his  being  entitled  to  intermeddle 
in  the  administration  of  it  in  any  manner.  He  then 
puts  the  question,  whether,  if  her  husband  goes  to 
reside  at  Paris  (where  no  such  right  exists,)  then  she 
falls  under  his  marital  authority,  so  as  to  lose  from  that 
period  the  administration  and  alienation  of  her  para- 
■plicrnal  property  ?  Boullenois  admits,  that  she  falls 
under  the  marital  authority ;  but  at  the  same  time  he 
contends,  that  she  has,  notwithstanding,  the  right  of 
administering  and  alienating  her  parapJwnal  property ; 

1  Rodenburg,  De  Divers.  Stat.  tit.  2,  Pt.  2,  ch.  1,  ^  I  ;  2  Boullenois, 
App.  p.  55,  56  ;  Burgund.  Tract.  2,  n.  7. 

2  1  Boullenois,  Observ.  4,  p.  61,  62;  Id.  Observ.  16,  p.  205;  2  Boulle- 
nois, Observ.  32,  p.  7  to  p.  51;  Id.  p.  81,  82  ;  Id.  Observ.  35,  p.  93  to  p. 
112. 

3  Rodenburg,  De  Div.  Stat.  tit.  2,  Pt.  2,  ch.  4,  ^  1 ;  2  Boullenois, 
Appx.  p.  63  ;  Id.  p.  81  ;  Id.  Observ.  35,  p.  93  to  p.  112. 

4  1  Domat,  B.  1,  tit.  9,  p.  167  ;  Id.  §  4,  p.  179,  180. 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  253 

because  it  was  given  to  her  by  the  contract  of  marriage, 
supported  by  the  law  of  her  matrimonial  domicil ;  and 
that  her  husband  cannot  by  a  change  of  domicil  ex- 
tinguish her  right,  founded  upon  such  authentic  titles. 
And  though  she  cannot  act  without  the  consent  of  her 
husband  in  such  administration  and  alienation ;  yet  he 
is  bound  to  give  such  consent.^  But  Boullenois  is 
compelled  to  admit  other  exceptions  to  the  doctrine, 
where  other  considerations  are  mixed  up  in  the  case. 
Thus  he  says :  Suppose  a  woman  is  married  at  Paris, 
and  has  a  community  of  property  with  her  husband 
there,  and  she  has  property  at  Aix  or  Toulouse,  and 
her  husband  goes  to  reside  at  either  of  these  places ; 
the  question  is,  whether  she  is  at  liberty  to  sell  her 
property  there  without  the  authority  or  consent  of  her 
husband ;  and  he  holds,  that  she  cannot  sell  her  pro- 
perty there  without  the  consent  of  her  husband,  al- 
though she  was  married  at  Paris.  The  reason  he 
assigns  is ;  because  in  the  countries  governed  by  their 
own  customary  law,  the  property  of  a  married  woman 
in  community  is  deemed  dotal  property;  and  is  pre- 
sumed to  have  been  brought  there  by  the  parties,  as 
such  ;  and  that  such  property,  as  dotal  property,  is  less 
alienable  at  Aix  and  Toulouse  than  in  countries  governed 
by  their  customary  law ;  and  that  in  those  Provinces, 
as  well  as  in  Paris,  the  husband  has  the  right  of  the 
administration  of  dotal  property  during  the  marriage ; 
so  that  the  change  of  domicil  does  not  make  the  right 
of  the  husband  to  cease.  But  (he  adds)  if  the  woman, 
married  at  Paris,  had  no  community  of  property,  and 
having  the  administration  thereof,  came  to  reside  at  Aix 


1  2  Boullenois,  Observ.  32,  p.  20,  21  ;  Id.  p.  22  to  p.  28.  See  Bouhier, 
Cout.  de  Bourg.  ch.  22,  ^  28  to  ^  30  ;  Id.  ^  40  to  ^  45. 
CONFL.  22 


254  CONFLICT    OF   LAWS.  [CH.  VL 

or  Toulouse,  then  she  might  sell  her  property  without 
the  authority  of  her  husband,  even  if  situate  in  Paris  ; 
because  she  is  no  longer  under  the  authority  of  her 
husband,  who  has  no  interest  in  the  sale.  But,  if  there 
were  no  such  community,  then  he  holds,  that  she  might 
sell.^ 

§  143.  Passing  from  the  consideration  of  the  personal 
capacities,  disabilities,  and  powers  of  the  wife,  and  of 
the  examination  of  the  different  opinions  of  foreign 
jurists  respecting  them  in  cases  where  there  has  been 
no  change  of  domicil,  and  in  cases,  where  there  has 
been  such  a  change,  let  us  in  the  next  place  examine 
into  the  effect  of  marriage  upon  the  mutual  property  of 
the  husband  and  wife,  and  their  respective  rights  in 
and  over  it.^  The  marriage  may  have  taken  place  with 
an  express  nuptial  contract,  or  arrangement,  as  to  the 
property  of  the  parties ;  or  it  may  have  taken  place 
without  any  such  contract,  or  arrangement.  The  prin- 
cipal difficulty  is  not  so  much  to  ascertain,  what  rule 
ought  to  govern  in  cases  of  an  express  nuptial  contract, 
(at  least,  where  there  is  no  change  of  domicil,)  as  what 
rule  ought  to  govern  in  cases  where  there  is  no  such 
contract,  or  no  contract,  which  provides  for  the  emer- 
gency. Where  there  is  an  express  nuptial  contract, 
that,  if  it  speaks  fully  to  the  very  point,  will  generally 
be  admitted  to  govern  all  the  property  of  the  parties, 
not  only  in  the  matrimonial  domicil,  but  in  every  other 


1  2  Boallenois,  Observ.  32,  p.  22,  23,  24.  See  2  Froland,  M6m.  1007 
to  1064 ;  Bouhier,  Cout.  de  Bourgr.  ch.  22,  ^  5  to  ^  10  ;  Id.  §  28  to  §  32  ; 
J.  Voet,  ad  Pand.  Lib.  5,  tit.  1,  ^  101  ;  1  Burge,  Coram,  on  Col.  and 
For.  Law,  Pt.  1,  ch.  6,  ^  2,  p.  244  to  p.  2fi2, 

~  See  1  Burge,  Comra.  on  Col.  and  For.  Law,  Pt.  1,  ch.  7,  ^  8,  p.  599 
to  p.  640. 


CH.  VI.]  MARRIAGES — INCIDENTS   TO.  255 

place,  under  the  same  limitations  and  restrictions,  as 
apply  to  other  cases  of  contract.^  But  where  there  is 
no  express  nuptial  contract  at  all,  or  none  speaking  to 
the  very  point,  the  question,  what  rule  ought  to  govern, 
is  surrounded  with  more  difficulty.  Is  the  law  of  the 
matrimonial  domicil  to  govern  ?  Or  is  the  law  of  the 
local  situation  of  the  property  ?  Or  is  the  law  of  the 
actual  or  new  domicil  of  the  parties?  Does  the  same 
rule  apply  to  movable  property  as  to  immovable  pro- 
perty, when  it  is  situated  in  different  countries  ?  - 
Boullenois  has  remarked,  that  even  on  the  subject  of 
marriage  contracts,  the  law  of  the  place  of  the  contract 
will  not  always  decide  all  the  questions  arising  from 
it.^  Many  of  the  questions  touching  it  must  be  decided 
by  the  law  of  the  domicil  of  the  parties,  and  sometimes 
by  the  law  of  the  domicil  of  one  of  them.^ 

§  144.  Two  classes  of  cases  naturally  present  them- 
selves in  considering  this  subject.  First,  those,  where 
during  the  marriage  there  is  no  change  of  domicil ; 
secondly,  those,  where  there  is  such  a  change.^ 


1  See  Le  Brun,  Trait6  de  la  Communaut6,  Liv.  1,  ch.  2,  ^  2 ;  Murphy 
V.  Murphy,  5  Martin,  R.  83  ;  Lashley  v.  Hogg,  Robertson's  Appeal  Cases, 
4  ;  Feaubert  v.  Turst,  Preced.  in  Chan.  207,  208.  This  doctrine  has 
been   fully  recognized  in   England,  in  the  case  of  Anstruther  v.  Adair, 

2  Mylne  &  Keen,  513  ;  post,  ^  184  ;  LeBreton  v.  Miles,  8  Paige,  R.  261. 

2  In  some  foreign  Codes,  there  are  express  provisions,  that  marriage 
contracts  shall  not  fix  the  rights  of  the  couple  according  to  the  law  of 
foreign  countries.  In  France,  there  is  an  effective  prohibition  of  contracts 
regulating  marriage  rights  by  the  old  customs  of  the  provinces  wiiich  it 
has  abolished.     Code  Civil,  art.    1390.     See  also   Bourcier  v.  Lanusse, 

3  Martin,  R.  .581. 

3  1  Boullenois,  Prin.  G6n.  48,  p.  11.  See  also  Dig.  Lib.  5,  tit.  1, 
I.  65. 

4  Ibid. 

5  See  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  7,  ^  8,  p.  599 
to  p.  640. 


256  CONFLICT    OF   LAWS.  [CH.  VL 

§  145.  And  first,  in  cases  where  there  is  no  change 
of  domicil,  and  no  express  nuptial  contract.  Huberus 
lays  down  the  doctrine,  in  broad  terms,  that  not  only 
the  contract  of  the  marriage  itself,  properly  celebrated 
in  a  place  according  to  its  laws,  is  valid  in  all  other 
places  ;  but  that  the  rights  and  effects  of  the  marriage 
contract,  according  to  the  laws  of  the  place,  are  to  be 
held  equally  in  force  everywhere.^  Thus,  he  says,  in 
Holland  married  persons  have  a  community  of  all  their 
property,  unless  it  is  otherwise  agreed  in  their  nuptial 
contract ;  and,  that  this  will  have  effect  in  respect  to 
property  situate  in  Friesland,  although  in  that  province 
there  is  only  a  community  of  the  losses  and  gains,  and 
not  of  the  property  itself  Therefore,  (he  adds,)  a 
Frisian  married  couple  remain  after  their  marriage  the 
separate  owners,  each  of  their  own  property,  situated 
in  Holland.  But  whenever  a  married  couple  remove 
from  the  one  province,  (Holland,)  into  the  other,  (Fries- 
land,)  the  property,  which  afterwards  comes  to  either  of 
them,  ceases  to  be  in  community,  and  is  held  in  distinct 
proprietary  rights.  But  their  antecedent  property,  held 
in  community,  remains  in  the  state  or  right,  in  which 
they  originally  possessed  it.  Porro,  non  tantum  ipsi  con- 
tractus ipsceque  nuptice  certis  locis  rite  cciehratce,  iihique  pro 
jiistis  et  validis  habentiir ;  sed  etiam  jura  et  effccia  con- 
tractmim  niqytiarumqiie,  in  iis  locis  rccepta,  ubique  vim  siiam 
oUinehimt.  In  Hollandia  conjuges  halent  omnium  honorum 
comiinionem,  quatenus  aliter  pactis  dotalihus  non  convenit. 
Hoc  etiam  locum  hahebit  in  bonis  sitis  in  Frisia,  licet  ibi 
tantum  sit  communio  quasius  et  damni,  non  ipsormn  bono- 


1  Huberus,  Lib.  1,  tit.  3,  ^  9  ;  post,  ^  1G9  ;  1  Burge,  Comm.   on  Col. 
and  For.  Law,  Pt.  1,  ch.  6,  ^  2,  p.  244  to  p.  262. 


CH.  VI.]  MARRIAGES INCIDENTS   TO.  257 

rum.  Ergo  et  Frizii  conjugcs  manent  singiili  rerum  siia- 
rum,  etiam  in  HoUandia  sitariim,  domini;  cum  primiim 
vero  conjugcs  migrant  ex  una  provincia  in  aliam,  bona  dein- 
ceps  quce,  alteri  advcniiint,  cessant  esse  commvnia,  mancnf- 
qiie  disiinctis  proprietcdihits ;  sic  ut  res  antea  communes 
factcB,  manent  in  eo  statu  juris,  quem  induerunt}  The  ex- 
ample he  thus  puts,  obviously  shows  that  his  doctrine 
is  applied  to  cases  where  there  is  no  express  contract. 

§  145  a.  Mr.  Chancellor  Kent  has  applied  the  doc- 
trine of  Huberus  in  the  case  of  an  express  ante-nuptial 
contract  between  the  parties ;  and  has  laid  down  the 
rule,  that  the  rights,  dependent  upon  nuptial  contracts, 
are  to  be  determined  by  the  Lex  loci  contractus?  This 
may  be  generally  correct,  in  regard  to  cases  of  express 
or  of  implied  nuptial  contracts ;  and  it  is  probable  that 
none  other  were  at  the  time  in  the  mind  of  the  learned 
judge.  But  we  shall  presently  see,  that,  as  a  general 
question,  in  regard  to  the  universal  operation  of  the 
Lex  loci  matrimonii,  there  is  much  controversy  upon  the 
subject  among  foreign  jurists. 

§  146.  There  are  many  distinguished  jurists,  who,  in 
common  with  Huberus,  maintain  the  opinion,  that  the 
incidents  and  effects  of  the  marriage  upon  the  property 
of  the  parties,  wherever  it  is  situate,  are  to  be  governed 
by  the  law  of  the  matrimonial  domicil,  in  the  absence 
of  all  other  positive  arrangements  between  the  parties.^ 


1  Huberus,  Lib.  1,  tit.  3,  De  Conflict.  Leg.  §  9  ;  post,  §>  169. 

2  See  De  Couche  v.  Savatier,  3  John.  Ch.  R.  211  ;  2  Kent,  Comm. 
Lect.  39,  p.  458,  459,  3d  edit.  See  also  Feaubert  v.  Turst,  cited  in  Ro- 
bertson's Appeal  Cases,  1,  and  Lashley  v.  Hogg,  1804,  cited  Id.  4  ;  Le 
Breton  v.  Miles,  8  Paige,  R.  261. 

3  Merlin  R6pert.  Commun.  de  Biens,  §  1,  art.  3  ;  1  BouUenois,  p.  660 
to  p.  673  ;  lb.  Observ.  29,  p.  732  to  p.  818  ;  Rodenb.  De  Div.  Stat.  tit. 
2,  ch.  5,  §  12,  13,  14,  15  ;  2  BouUenois,  Appx.  p.  41  to  p.  46  ;  1  Burge, 

22* 


258  CONFLICT    OF  LAWS.  [CH.  VI. 

Thus,  if  English  subjects  are  married  in  England  with- 
out any  nuptial  contract,  the  husband,  being  entitled 
by  the  law  of  England  to  all  the  personal  or  movable 
property  of  his  wife,  will  be  entitled  to  it  wherever  it 
may  be  situated,  whether  in  England  or  in  any  foreign 
country.  And  his  rights,  it  would  seem,  in  her  immo- 
vable property,  wherever  it  may  be  situated,  would,  in 
the  opinion  of  many  of  the  foreign  jurists,  be  exclu- 
sively regulated  by  the  law  of  England.^  So,  on  the 
other  hand,  French  subjects,  married  in  France,  without 
any  contract  whatever,  would  hold  (as  we  have  seen  ^) 
certain  kinds  of  their  property  in  community  general- 
ly ',  and  this  rule  would  apply  as  well  to  the  like  pro- 
perty situated  in  foreign  countries,  as  to  that  situated 
in  France. 

§  147.  The  grounds  upon  which  this  opinion  has 
been  maintained,  are  various.  Some  foreign  jurists  hold, 
that  the  law  of  the  matrimonial  domicil  attaches  all  the 


Coram,  on  Col.  and  For.  Law,  Pt.  1,  ch.  6,  ^  2,  p.  244  to  p.  253  ;  Id.  ch.  7, 
§  8,  p.  599  to  p.  609. 

1  Hertii  Opera,  De  Collis.  Leg.  ^  47,  p.  143,  edit.  1737  ;  Id.  p.  204, 
edit.  1716.  —  Many  jurists  make  no  distinction  in  the  application  of  the 
doctrine  of  the  tacit  contract  of  marriage  between  movable  and  immova- 
ble property,  and  consider  both  to  be  governed  by  the  law  of  the  domicil 
of  marriage.  Others  again,  distinguish  between  them.  Foreign  jurists 
commonly  in  the  term,  "  biens,"  include  all  sorts  of  property,  movable  and 
immovable,  in  their  discussions  on  this  subject.  See  Merlin,  Rupert.  Au- 
toris.  Maritale,  ^  10,  art.  2  ;  Id.  Majority,  §  5  ;  Id.  Communaut6  de  Biens, 
^  1,  art.  3  ;  Voet,  De  Statut.  ^  4,  ch.  2,  n.  16 ;  Rodenburg,  De  Div.  Stat. 
Pt.  1,  tit.  2,  ch.  5,  ^  13,  14,  15  ;  Id.  Pt.  2,  tit.  2,  ch.  4,  ^  1  ;  2  Boulle- 
nois,  Appx.  p.  41  to  46  ;  Id.  p.  63  ;  1  BouUenois,  p.  673,  683,  767  ;  2 
Boullenois,  p.  81,  88  ;  Observ.  35,  p.  93,  94  ;  Id.  Observ.  37,  p.  266, 
277  ;  1  Hertii  Opera,  De  Collis.  Leg.  ^  46,  47,  p.  143,  144,  edit.  1737; 
Id.  p.  203,  204,  edit.  1716  ;  Livermore,  Dissert.  ^  89,  p.  73,  74  ;  Hube- 
rus,  Lib.  1,  tit.  3,  ^  9  ;  Bouhier,  ch.  22,  ^  79,  p.  429.  See  also  1  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  7,  ^  8,  p.  599  to  p.  609. 

2  Ante,  §  130. 


CH.  VI.]  MARRIAGES INCIDENTS   TO.  259 

rights  and  incidents  of  marriage  to  it,  proprio  vigore, 
and  independent  of  any  supposed  consent  of  the  par- 
ties.^    Others  hold  that  there  is  in  such  cases  an  im- 
plied consent  of  the  parties  to  adopt  the  law  of  the 
matrimonial  domicil  by  way  of  tacit  contract ;  and  then 
the  same  rule  applies,  as  is  applied  to  express  nuptial 
contracts.     Dumoulin  was  the  author,  or  at  least  the 
most   distinguished  advocate,  of  this  latter  doctrine.^ 
Quia  per  prcedida  inest  (says  he)  tacihmi  pactum,  quod 
mariiiis  IncraUtiir  dotem  convcntam,  in  casu,  et  pro  propor- 
tione  statuti  illius  domicilii,  quod  prcBvidetur,  et  intelligHur  ; 
et  istiid  tacitmn  piactum,  nisi  conventimi  fiierit,   intrat  in 
actionem  ex  stipidatu  rei  iixorice,  et  illam  informat.     Itaque 
semper  remanet  forma  ah  initio  impressa?     And  he  adds, 
that  it  applies  to  all   property,  whether   situate,  and 
whether  movable  or  immovable ;  Non  solum  inspiciatiir 
statutum  vel  consuetiido  primi  illius  domicilii  pro  lonis  siih 
illo  sitis.     JSed  locum  habebit  uUqiie  etiam   extra  fines  et 
territoriiim  dicti  statuti,  etiam  interim  correpti;  et  Jioc  indis- 
tincte,  sive  bona  dotalia  sint  molilia,  sive  immoUlia,  uhicun- 
que  sHa,  sive  nomina.     Ratio  punctiialis  specifica  procedat 
in  vim  taciti  pacti  ad  formam  statuti  ;  vcluti,  quod  taciturn 
pactum  pro  expresso  liabetur^ 

§  148.  The  opinion  of  Dumoulin,  that  the  law  of  the 


1  See  1  Boullenois,  Obser.  29,  p.  741,  750,  757,  758;  Huberus,  Lib.  1, 
tit.  3,  De  Confi.  Leg.  ^  9. 

2  1  Boullenois,  Obser.  29,  p.  757. 

3  Molin.  Comm.  ad.  Cod.  Lib.  1,  tit.  1,  1.  1,  Opera,  Tom.  3,  p.  555, 
edit.  1681  ;  1  Froland,  M6m.  62,  218  ;  Livermore,  Dissert.  ^  89,  p.  73, 
74  ;   1  Boullenois,  Observ.  29,  p.  756,  758. 

4  Molin.  Comm,  ad  Cob.  Lib.  1,  tit.  1,  1.  1  ;  Conclus.  De  Statutis, 
Opera,  Tom.  3,  p.  555,  edit.  1681  ;  1  Froland,  Mem.  61,  62,  63,  218  ; 
Livermore,  Dissert.  \  89,  p.  73,  74  ;  1  Boullenois,  Obser.  29,  p.  757, 
758. 


260  CONFLICT    OF   LAWS.  [CH.    VI. 

place  of  the  marriage  constitutes  the  rule,  by  which 
the  rights  of  married  persons  are  regulated,  by  a  tacit 
contract  of  the  parties,  in  the  absence  of  any  express 
contract,  according  to  the  maxim.  In  contradihiis  tacUe 
veniiint  ea,  qiice  sunt  moris  et  consiietiidinis,  has  been 
adopted  by  Bouhier,  Hertius,  Pothier,  Merlin,  and 
other  distinguished  jurists.^  It  is  opposed,  however, 
b}'  others  of  no  small  celebrity ;  and  the  doctrine  of 
tacit  contract  in  the  case  of  marriage  (as  we  shall  see) 
is  treated  by  some  of  them  as  a  mere  indefensible  and 
visionary  theory.^  D'Argentre,  and  Froland,  and  Van- 
der  Muelin,  are  at  the  head  of  those  who  maintain,  that 
the  law  of  the  situs  of  the  property  constitutes  the  rule 
to  decide  the  rights  of  the  marriage  couple  at  all  times, 
and  under  all  circumstances.^  D'Argentre  says ;  Pri- 
miun,  quod  3Iolmceus  a  simpUci  consveiudinis  disposiiione 


1  Bouhier,  Cout.  de  Bourg.  ch.  23,  §  69  to  ^  75,  p.  458,  459  ;  Id.  ch. 
26,  per  tot.  p.  462  to  p.  490  ;  1  Froland,  M^m.  61  to  63  ;  Id.  178  to  211  ; 
Id.  214  to  222;  Id.  274  ;  Merlin,  Rupert.  Communauie  de  Biens,  ^  1, 
art.  3  ;  Pothier,  Traite  de  la  Communaute,  art.  1,  n.  10;  1  Heriii  Opera, 
De  Collis.  Leg.  ^  47,  p.  143,  edit.  1737;  Id.  p.  204,  edit.  1716;  post, 
^  150,  151,  152;  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  7, 
§  8,  p.  599  to  p.  614. 

2  Froland,  in  opposing  the  doctrine  of  tacit  contracts,  derived  from  the 
supposed  operation  of  the  Lex  Loci  Matrimonii,  says,  Ce  ne  sont  la  que 
des  paroles,  et  rien  au-dela.  Mirificum  illud  Molinsei  acumen  ;  des  sub- 
tiliies  d'Esprit  ;  des  Idees;  des  Chimeres;  Eiifin  des  moyens,  que  la  seule 
imagination  ^chauffee  produit.  Hac  grandiloqueniia  etiamsi  Molioseus 
personal,  tamen  aperie  non  est  verum,  quod  dicit.  1  Froland,  M6m.  316  ; 
post,  ^  167. 

3  D'Argentr6,  In  Briton.  Leges.  Des  Donations,  art.  218,  Glos.  6,  n. 
33,  Tom.  1,  p.  655  to  p.  657;  Livermore,  Dissert.  ^  95,  p.  77  ;  1  Fro- 
land, M6m.  192  to  200  ;  Id.  220,  222  :  Id.  316  ;  1  Boullenois,  p.  673  to 
p.  699 ;  Id.  Obser.  29,  p.  732  to  p.  736  ;  Id.  p.  740  to  p.  750  ;  Id.  p.  757, 
792;  2  Boullenois,  Obser.  35,  p.  110;  Merlin,  Repertoire  Communaute 
de  Biens,  ^  1,  art.  3,  p.  110,  111  ;  Livermore,  Dissert  ^  92  to  106,  p.  75 
to  p.  82  ;  1  Froland.  Mem.  61  to  64  ;  po.st,  ^  152  a,  note  2,  ^  167,  168  : 
1  ^urge,  Comm.  on  Col   and  For.  Law,  Pt.  1,  ch.  7,  ^  8,  p.  609. 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  261 

elicet  pariiwn  conventionem  d  pactum,  citra  idlam  conven- 
tionem  partium  adjedam  consududini,  raiionem  non  hahd. 
Alia  enim  vis  d  j-aiio,  aliud  et  principium  et  causa  ohliga- 
tionis,  quce  a  lege  indiicitiir,  alia  ejus,  qucc  ah  pado  d  con- 
vcntione  pariiwn  proficiscitur} 

§  149.  It  may  be  useful  to  bring  together  in  this 
place  in  a  more  exact  form  the  opinions  of  some  other 
jurists  of  the  highest  reputation  on  this  subject  for  the 
purpose  of  exhibiting  some  of  the  differences,  as  well 
as  some  of  the  coincidences,  in  the  doctrines  respectively 
maintained  by  them. 

§  150.  Cochin  holds  the  doctrine,  that  if  the  contract 
of  marriage  contains  no  stipulation  for  community  of 
property,  the  law  of  the  place,  where  the  parties  are 
domiciled,  and  to  which  they  submit  by  the  contract  of 
marriage,  must  govern,  not  only  as  to  property  (hiens) 
situate  in  that  place,  but  as  to  property  situate  in  all 
other  places.^  The  rights  of  married  persons  (he  adds) 
over  the  property,  which  they  then  have,  as  well  as 
over  that,  which  they  afterwards  acquire,  ought  to  be 
regulated  by  an  uniform  rule.  If  they  have  established 
an  express  rule  by  the  contract  of  marriage,  that  ought 
to  decide  their  rights  as  to  all  their  property.  If  they 
have  made  no  stipulation,  then  the  law  of  the  place  of 
their  common  domicil  establishes  a  rule  for  them ; 
since  they  are  presumed  to  submit  themselves  to  it, 
when  they  have  not  stipulated  any  thing  to  the  con- 
trary. 

§  151.    Le  Brun  is  quite  as  explicit.     After  stating 

1  D'Argentr6,  In  Briton,  Leg.  Des  Donations,  art.  218,  Gloss.  6,  n.  33, 
Tom.  1,  p.  656  ;  Livermore,  Dissert.  ^  92,  p.  75,  ^  95,  p.  77,  ^  lOG, 
p.  81,  See  also  I  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  7, 
§  8,  p.  609  to  p.  614  ;   1  Boullcnois,  Obser.  29,  p.  7G1  to  p.  767. 

2  Cochin,  ffiuvres,  Tom.  3,  p.  703,  4to  edit.  » 


262  CONFLICT    OF    LAWS.  [CH.  VL 

that  the  community  of  property  may  be  formed  by  an 
express  contract,  or  by  a  tacit  contract,  he  gives  as  a 
reason  for  the  latter,  that,  if  the  married  couple  have 
not  made  any  express  stipulation,  and  are  domiciled  in 
a  place  where  the  law  of  community  exists,  when  they 
are  married,  the  conclusion  is,  that  they  have  referred 
themselves  to  that  law.  And  this  presumption  has  its 
foundation  in  law,  which  often  decides,  that,  as  to 
things  omitted  in  the  contract,  the  parties  have  referred 
themselves  to  the  usage  or  law  of  the  place.^  And  he 
adds,  that  as  in  cases  of  express  contracts  for  commu- 
nity of  property,  the  contracts  reach  all  the  property  of 
the  parties,  even  in  other  countries,  so  in  cases  of  tacit 
contracts,  such  as  those  resulting  by  operation  of  law, 
the  same  rule  applies.  If  the  law  of  the  place  of 
domicil  and  marriage  of  the  parties  creates  such  a  com- 
munity, it  applies  to  all  property,  wherever  it  is  situate. 
It  has,  in  short,  all  the  character  and  effect  of  a  per- 
sonal law  or  statute,  although  it  regulates  property.^ 

§  152.  Hertius  has  put  a  number  of  cases  to  illus- 
trate the  general  principle.  At  Liege,  by  law,  the 
husband  by  marriage  acquires  the  ownership  of  all  the 
property  of  his  wife  of  every  nature.  At  Utrecht  it  is 
otherwise.  Is  an  inhabitant  of  Utrecht  entitled,  jure 
connuhii,  to  take  all  the  property  of  his  deceased  wife 
situate  in  Liege  ?  He  answers  in  the  negative ;  be- 
cause the  law  of  the  place  of  marriage  (Utrecht.)  does 
not  confer  it.^  Again.  A  person,  in  whose  domicil 
there  is  no  community  of  property  between  married 


'  Le  Brun,  Trail6  de  la  Communaute,  Liv.  1,  ch.  2,  ^  2,  3,  4. 
2  Id    Liv.  1,  ch.  2,  ^6,  ^  36  to  42. 

2  Hertii  Opera,  De  Cullis.   Leg.   §  44,  p.    142,   143,  edit.    1737;    Id. 
p.  201,  edit.  1716. 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  263 

persons,  possesses  property  in  another  territory,  where 
such  community  of  all  property  exists,  and  he  contracts 
marriage  in  another  country,  where  a  qualified  commu- 
nity only  exists  ( Ubi  socicias  lonorum  tantum,  sive  simpK- 
citcr,  ita  dicta,  oUind.)  What  law  is  to  prevail  ?  Some 
jurists  hold,  that  the  law  of  the  domicil  shall  prevail. 
Others  are  of  a  different  opinion.  Hertius  himself 
holds,  that,  as  the  case  supposes  the  place  of  the  mar- 
riage to  be  foreign  to  both  parties,  the  law  of  the  hus- 
band's domicil  ought  to  prevail  as  an  implied  contract 
between  the  parties.^  Again.  In  the  domicil  of  the 
husband,  a  community  of  property  exists  between  mar- 
ried persons ;  will  that  community  apply  to  immovable 
property,  bought  by  either  party  in  a  territory  where 
such  a  law  does  not  exist  ?  Many  jurists  decide  in  the 
negative.  Hertius  holds  the  affirmative,  upon  the  ground 
of  an  implied  contract,  resulting  from  the  marriage.^ 

§  152  a.  Froland  puts  the  case  of  a  man  domiciled 
at  Paris,  who  goes  and  marries  a  woman  in  a  country 
governed  by  the  Roman  law,  as  in  Rheims,  Auvergne, 
or  Normandy,  or  ^  contra  ;  and  the  marriage  is  without 
any  express  contract ;  and  he  then  asks,  in  such  a  case, 
what  law  is  to  prevail  as  to  future  acquisitions  (con- 
quests ?)  The  law  of  the  domicil  of  the  husband  ?  Or 
that  of  the  wife  ?  Or  that  of  the  place  of  marriage  ? 
Or  of  the  location  of  the  property  ?  And  he  decides  in 
favor  of  the  latter.^ 


1  Id.  ^  4G,  p.  143,  edit.  1737;  Id.  p.  2n2,  edit.  1716. 

2  Id.  p.  144,  \  47,  edit.  1737 ;  Id.  p.  204,  edit.  1716.  —  The  decision  of 
Mr.  Chancellor  Kent  in  De  Couche  v.  Sabatier,  3  Johns.  Cli.  R.  1»0,  211, 
treating  it  as  a  case  of  an  express  or  an  implied  contract,  would  lead  to 
the  same  conclusion. 

3  1  Froland,  M6m.  321.  See  also  Voet,  De  Stat.  ^  4,  ch.  3,  ^  9,  p.  134, 
135,  edit.  1715  ;  Id.  p.  151,  152,  edit.  IGOl. 


264  CONFLICT    OF   LAWS.  [CH.  VI. 

§  153.  Frolancl  has  stated  the  question  in  a  more 
general  shape ;  whether,  if  a  community  of  property 
exists  by  the  law  of  the  place  of  domicil  and  marriage 
of  the  parties,  it  extends  to  all  property  situate  else- 
where, where  no  such  law  prevails?^  He  gives  the 
reasoning  of  different  jurists,  maintaining  opposite  opi- 
nions on  the  point,  and  concludes  by  stating,  that  the 
opinion  of  Dumoulin  in  the  affirmative  has  finally  pre- 
vailed, in  cases  where  there  is  an  express  contract  for 
such  community;  and  Dumoulin  equally  contends  for 
it  in  cases  of  tacit  contract,  resulting  from  the  Lex  loci 
contractus?'  From  this  latter  point,  however,  Froland 
dissents  in  a  qualified  manner.^  He  deems  the  law  of 
community,  independent  of  an  express  contract  to  be  a 
real  law;  and  therefore  confined  to  the  territory.  As 
to  acquests,  or  acquisitions,  whether  of  movable  or  of 


1  1  Froland,  Mem.  p.  178  to  p.  200;  Id.  p.  211  to  p.  271;  Id.  p.  272  to 
p.  340.  See  also  1  Boullenois,  p.  660  to  p.  683;  Id.  Observ.  29,  p.  732 
to  p.  818.  Dumoulin's  words  are  ;  "  Nullum  habet  dubium  quin  societas, 
samel  contracta,  complectatur  bona  ubicumque  sita,  sine  uUa  differentia 
territorii,  quemadmodum  quilibet  contractus,  sive  tacitus,  sive  expressus, 
ligat  personam,  et  res  disponentis  ubique.  Non  obstat,  quod  hujusmodi 
societas  non  est  expressa,  sed  tacita  ;  nee  oritur  ex  contractu  expresso 
partium,  sed  ex  tacito  el  prsesumpto  contractu  a  consuetudine  locali  intro- 
ducto."  1  Froland,  Mem.  274.  See  also  Livermore,  Dissert.  ^  78  to  90, 
p.  69,  71,  72,  73,  74;  Saul  v.  His  Creditors,  17  Martin,  R.  569,  599. 
The  same  doctrine  is  maintained  by  Bouhier.  "Tout  statut,"  says  he, 
"qui  est  fond6  sur  une  convention  tacite  et  presumee,  des  contractans, 
est  personnel."  Bouhier,  Cout.  de  Bourg.  eh.  32,  6  69  to  74.  And  he 
expressly  applies  it  to  the  case  of  tacit  contracts  of  marriage,  following 
out  the  reasoning  of  Dumoulin.  Id.  oh.  26,  ^  1  to  20.  On  the  other 
hand,  D'Argentre  and  Vander  Muelen,  hold,  that  all  laws  respecting 
community  are  real  and  not  personal ;  and  therefore,  that  they  are  go- 
Terned  by  the  law  m  sil<t.  1  Boullenois,  Obser.  39,  p.  758,  759,  760  to 
765. 

2  Ibid. 

3  1  Froland,  M6m.  315,  316,  317. 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  265 

immovable  property,  made  in  foreign  countries,  where 
the  law  of -community  exists,  he  agrees,  that,  in  cases 
of  an  express  contract,  the  law  of  the  matrimonial  do- 
micil  ought  to  prevail.  But  as  to  foreign  countries, 
where  the  law  of  community  does  not  exist,  he  thinks 
the  right  does  not  extend,  ant  in  vim  consiietiidinis,  or  in 
vim  contractus ;  for  it  is  in  vain  to  presume  a  tacit  con- 
tract ;  and  that,  therefore,  it  ought  to  be  governed  by 
the  law  rei  sitce}  It  would  seem,  however,  from  subse- 
quent passages,  that  he  applied  his  doctrine  to  the  case 
of  immovables  only ;  admitting,  that  movables  should 
be  governed  by  the  law  of  the  domicil  of  the  parties.^ 

§  154.  Rodenburg  seems  to  apply  the  same  princi- 
ple to  cases,  where  there  is  a  nuptial  contract,  as  to 
cases  where  there  is  none,  holding,  that,  in  the  latter 
cases,  the  law  of  the  matrimonial  domicil  is  adopted  by 
a  tacit  contract.  At  the  same  time  he  asserts,  that  the 
law  of  community  is  not  personal,  but  is  real ;  and  hence, 
that  although  it  does  not,  or  may  not,  directly  act  upon 
property  aliunde,  where  no  community  exists;  yet  it 
will  give  a  right  of  action,  founded  in  the  tacit  contract, 
which  may  be  enforced  everywhere.  And,  therefore, 
the  law  of  the  matrimonial  domicil,  in  such  a  case,  acts 
indirectly  and  obtains  universality  of  application  by 
reason  of  the  tacit  contract.^  And  he  applies  it  equally 
to  present  and  future  acquisitions."* 

§  155.  Boullenois  holds  an  opinion  somewhat  differ- 


1  1  Froland,M6m.  315,  316,  317,  321,322,323,  338,341  ;  1  Boullenois, 
Obser.  29,  p.  758,  759. 

2  Ibid. 

3  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  5,  ^  12  to  ^  15;  2  Boullenois, 
Appx.  p.  41  to  p.  47  ;  1  Boullenois,  p.  673  to  p.  683  ;  Id.  Obser.  29,  p. 
732  to  p.  735 ;  Id.  p.  754  to  p.  757. 

4  Ibid. 

CONFL.  23 


266  CONFLICT    OF   LAWS.  [CH.  VI. 

ent.  After  having  stated,  that  jurists  have  entertained 
different  views  as  to  the  operation  of  the  law  of  the 
matrimonial  domicil  upon  the  real  property  then  pos- 
sessed by  the  parties,  and  upon  that  afterwards  acquired 
by  them,  he  says,  that  they  seem  generally  agreed  in 
one  point,  that  so  far  as  respects  their  property  at  the 
time  of  the  marriage,  of  strict  right,  the  law  of  the  situs 
ought  to  be  followed.  But  as  to  their  property,  ac- 
quired after  the  marriage,  they  differed  ;  some  holding, 
that  it  was  governed  by  the  law  of  the  situs  ;  others, 
that  it  was  not,  and  that  the  law  of  the  place  of  the 
marriage,  as  to  community  or  non-community,  ought  to 
govern.  Boullenois  holds,  that  this  latter  doctrine  is 
not  correct ;  because  all  laws  respecting  property  are 
real ;  and  that  those,  who  adhere  to  this  doctrine,  are 
obliged  to  resort  to  a  supposed  tacit  contract  of  the  par- 
ties, to  be  governed  by  the  law  of  the  matrimonial  do- 
micil. He  goes  on  to  state,  that,  without  aiming  a  blow 
against  this  system  of  tacit  contract,  which  on  account 
of  its  equity  he  highly  approves,  his  own  opinion  is,  that 
there  is  no  necessity  for  deeming  the  law  of  community 
to  be  a  personal  law,  in  order  to  give  full  effect  to  the 
doctrine,  as  to  property  acquired  after  the  marriage, 
upon  another  distinction.  This  distinction  is,  that  the 
law  of  community  or  non-community,  is  one,  merely 
fixing  the  state  or  condition  of  the  married  couple  ;  and 
therefore  not  a  real,  but  a  personal  law.'  Hence  he 
holds,  that  the  law  of  community  or  of  non-community, 
existing  in  the  matrimonial  domicil,  extends  to  all  pro- 
perty of  the  parties,  wherever  it  is  situated  ;  not  upon 
the  ground  of  any  tacit  contract,  but  iwopio  vigore,  as  a 


1  1  Boullenois,  Obser.  29,  p.  736,  741,  751  to  770. 


CH.  VI.]  MARRIAGES INCIDENTS  TO.  267 

law,  binding  both  as  to  their  present  property,  and  as  to 
their  future  acquisitions.  But  if  by  the  law  of  the  situs 
the  law  of  community  is  prohibited,  as  to  their  present 
property,  or  as  to  their  future  acquisitions,  or  as  to  both, 
then  he  admits,  that  the  law  of  the  situs  ought  to  pre- 
vail ;  for  in  all  cases  of  this  sort  the  personal  law  yields 
to  the  real  law  of  the  situs.  Le  statut  personnel  cede  en 
cctte  occasion  cm  statiit  reel  de  la  situation} 

§  156.  Pothier  has  adopted  the  doctrine  of  tacit  con- 
tracts, maintained  by  Dumoulin;  and,  therefore,  in  case 
there  is  no  express  nuptial  contract,  if  the  law  of  the 
matrimonial  domicil  creates  a  community,  he  holds,  that 
it  applies  to  all  property,  present  and  future,  wherever 
situated,  and  even  in  provinces,  which  do  not  admit  of 
a  community.^  Grotius  is  also  stated  to  have  held  the 
same  opinion  in  a  case,  where  he  was  consulted.^ 

§  157.  It  has  been  remarked  by  the  Supreme  Court 
of  Louisiana,  that  the  greater  number  of  the  jurists  of 
France  and  Holland  are  of  opinion,  that  in  settling  the 
rights  of  the  husband  and  wife,  on  the  dissolution  of 
the  marriage,  to  the  property  acquired  by  them,  the  law 
of  the  place,  where  the  marriage  was  contracted,  and 
not  of  that,  where  it  was  dissolved  by  death,  must  be  the 
guide.  And  that  this  opinion  is,  by  most  of  them, 
founded  on  the  idea  first  promulgated  by  Dumoulin, 
that,  where  the  parties  marry  without  an  express  nup- 
tial contract,  they  must  be  presumed  to  contract  with 


1  I  Boullenois,  Obser.  29,  p.  736,  741,  750,  751  to  754  ;  Id.  p.  754  to 
p.  757,  759,  760,  7G6,  769,  770;  2  Boullenois,  Obser.  37,  p.  277;  post, 
\  166. 

2  Pothier,  Trait6  de  la  Communaut6,  art.  Prelim,  n.  10  to  n.  18  ;  post, 
^  166. 

3  See  Henry  on  Foreign  Law,  ch.  5,  p.  36,  37,  note  ;  iBurge,  Comra. 
on  Col.  and  For.  Law,  Pt.  1,  ch.  7.  ^  8,  p.  005. 


268  CONFLICT    OF   LAWS.  [CH.  YI. 

reference  to  the  law  of  the  country,  where  the  marriage 
took  place,  and  that  this  tacit  contract  follows  them 
wherever  they  go.^  But  that  Court  are  of  opinion,  that 
the  ground  is  unsatisfactory,  especially  when  it  is  ap- 
plied to  cases  of  property,  acquired  after  a  subsequent 
change  of  domicil  of  the  parties.  Their  view  of  the 
subject  is,  that  if  the  doctrine  of  a  tacit  contract  be  ad- 
missible at  all,  the  contract  is  to  be  construed  in  the 
same  way,  as  if  the  laws  of  the  country  of  the  marriage 
were  inserted  in  it ;  and  that,  so  far  as  they  are  to  be 
deemed  real  laws,  and  not  to  be  personal  laws,  they  are 
necessarily  territorial,  and  can  be  construed  to  apply 
only  to  acquests  or  acquisitions  within  that  peculiar 
country.  The  extent  of  the  tacit  agreement  depends 
upon  the  extent  of  that  law.  If  it  has  no  force  beyond 
the  jurisdiction  of  the  sovereign,  by  which  it  is  enacted  ; 
if  it  is  real,  and  not  personal ;  then  the  tacit  consent  of 
the  parties  cannot  turn  it  into  a  personal  statute.  The 
parties  have  not  said  so;  and  they  are  presumed  to 
have  contracted  in  reference  to  the  law,  such  as  it  was  ; 
to  have  known  its  limitations,  as  well  as  its  nature  ;  and 
to  have  had  the  one  as  much  in  view  as  the  other.  In 
one  word,  the  parties  have  agreed,  that  the  law  shall 
bind  them,  as  far  as  that  law  extends,  but  no  farther.^ 

§  158.  The  result  of  this  reasoning  (and  it  certain- 
ly has  very  great  force)  would  seem  to  be,  that  in 
the  case  of  a  marriage  without  any  express  nuptial  con- 
tract the  Lex  loci  contractus  (assuming,  that  it  furnishes 
any  just  basis  to  imply  a  tacit  contract)  will  govern  as  to 


1  Mr.  Justice  Porter  in  delivering  the  opinion  of  the  Court  in  Saul  v. 
His  Creditors,  17  Martin,  R.  599  ;  post,  ^  170. 

2  Mr.  Justice  Porter  in  the  case  of  Saul  v.  His  Creditors,  17  Martin,  R. 
509,  603  to  G05  ;  post,  §  187. 


CH.  VI.]  MARRIAGES INCIDENTS  TO.  269 

all  movable  property,  and  as  to  all  immovable  property 
within  that  country ;  and  as  to  property  in  other  coun- 
tries, it  will  govern  movables,  but  not  immovables ;  the 
former  having  no  situs,  and  the  latter  being  governed  by 
the  Lex  rei  sitcc. 

§  159.  Perhaps,  the  most  simple  and  satisfactory  ex- 
position of  the  subject,  or  at  least,  that,  which  best  har- 
monizes with  the  analogies  of  the  common  law,  is,  that 
in  the  case  of  a  marriage,  where  there  is  no  special  nup- 
tial contract,  and  there  has  been  no  change  of  domicil, 
the  law  of  the  place  of  celebration  of  the  marriage  ought 
to  govern  the  rights  of  the  parties  in  respect  to  all  per- 
sonal or  movable  property,  wherever  acquired,  and  wher- 
ever it  may  be  situate  ;  but  that  real  or  immovable  pro- 
perty ought  to  be  left  to  be  adjudged  by  the  Lex  rei 
sitcu,  as  not  within  the  reach  of  any  extra-territorial  law.^ 
Where  there  is  any  special  nuptial  contract,  between 
the  parties,  that  will  furnish  a  rule  for  the  case ;  and  as 
a  matter  of  contract,  ought  to  be  carried  into  effect 
everywhere,  under  the  general  limitations  and  excep- 
tions belonging  to  all  other  classes  of  contracts.^ 


1  See  Henry  on  Foreign  Law,  ch.  7,  p.  48,  49 ;  post,  §  454  ;  Le  Bre- 
ton V.  Miles,  8  Paige,  R.  261. 

2  Post,  ^  454.  Paul  Voet  lays  down  the  following  doctrine.  "  Si  sta- 
tuto  hujus  loci  inter  conjuges  bona  sint  communia,  vel  pactis  antenuptiali- 
bus  ita  conventum  sit,  ut  omnia,  ubique  locorum  sita,  communia  forent, 
etiam  ad  ilia,  quaj  in  Frisia  jecent,  ubi  non  nisi  qua;sitorum  est  communio, 
dabitur  actio,  ut  communicentur."  Voet,  De  Stat.  ^  4,  ch.  2,  §  16,  p. 
127,  edit.  1716  ;  Id.  p.  142,  edit.  1661 ;  Id.  ch.  3,  ^  9,  p.  134,  edit.  1716  ; 
Id.  p.  140,  141,  Yet  he  deems  laws  establishing  a  community  of  property 
to  be  real,  and  not  personal  laws.  Id.  ^  4,  ch.  3,  §  9,  p.  134,  135,  edit. 
1716,  See  1  Froland,  M^m,  199,  200.  This  apparent  discrepancy  may 
be  reconciled,  by  considering,  that  though  the  law  of  community  be  real ; 
yet  it  may  found  a  right  of  action  for  property  situate  elsewhere.  See 
also  Rodenburg,  De  Divers.  Stat.  tit.  2,  ch,  5,  ^  12  to  15  ;  2  Boullenois, 
Appx.  p,  41  to  p.  46.     A  distinction  of  this  sort  seems  not  unknown  to  the 

23* 


270  CONFLICT    OF   LAWS.  [CH.  VI. 

§  160.  In  the  next  place,  what  is  the  principle  to  be 
adopted  in  cases  where  there  has  been  a  change  of  do- 
micil  ?  And  this  admits  of  a  double  aspect ;  first,  in 
relation  to  property  acquired  by  the  parties  before  the 
removal ;  and  secondly,  in  relation  to  property  acquired 
by  the  parties  afterwards  in  the  new  domicil.  In  each 
instance,  however,  we  are  to  be  understood  to  speak  of 
the  mere  operation  of  law,  where  there  is  no  express 
nuptial  contract  between  them.^ 

§  161.  Upon  this  subject  there  is,  as  we  have  already 
seen,  no  small  diversity  of  opinion  among  foreign  ju- 
rists, as  well  in  regard  to  the  rights  to  property  ac- 
quired after  the  change  of  domicil,  as  in  regard  to  the 
rights  to  property  antecedently  acquired.^  Bouhier 
lays  down  the  rule  in  general  terms,  that  in  relation  to 
the  beneficial  and  pecuniary  rights  [Les  droits  utiles  d 
^oecimiaires)  of  the  wife,  which  result  from  the  matrimo- 
nial contract,  either  express  or  tacit,  the  husband  has 


Scottish  law.  1  Rose,  Cas.  in  Bank.  481.  Lord  Meadowbank,  in  a  Scot- 
tish case  of  great  importance,  laid  down  the  following  doctrine  as  unques- 
tionable. "  In  the  ordinary  case  of  transference  by  contract  of  marriage, 
when  a  lady  of  fortune,  having  a  great  deal  of  money  in  Scotland,  or  stock 
in  the  bank,  or  public  companies  there,  marries  in  London,  the  whole  pro- 
perty is  ipso  jure  her  husband's.  It  is  assigned  to  him.  The  legal  assign- 
ment of  a  marriage  operates,  ivithout  regard  to  territory,  all  the  world 
over."  Royal  Bank  of  Scotland  v.  Smith,  &c.  1  Rose,  Cas.  Bank.  Appx. 
I'Jl.  Lord  Eldon  has  affirmed  this  doctrine  to  be  correct,  in  relation  to 
personal  property  ;  but  not  in  relation  to  real  property.  In  the  cases  of 
bankruptcy,  to  which  he  applied  it,  he  added,  that  there  was  no  legal  ob- 
ligation on  a  bankrupt  to  convey  his  real  estate,  situate  in  a  foreign  coun- 
try, to  the  assignees.  Selkrig  v.  Davies,  2  Rose,  Bank.  Cas.  99,  S.  C. 
2  Dow,  R.  230,  250. 

1  See  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  7,  §  7,  p.  609 
to  640  ;  ante,  ^  155  ;  post,  ^  449  to  §  454  ;  Ordronaux  v.  Rey,  2  Sandf. 
Ch.  R.  33. 

2  Ante,  ^  137  to  142  ;  Id.  §  143  to  159  ;  1  Burge,  Com.  on  Col.  and 
For.  Law,  Pt.  1,  ch.  7,  ^  8,  p.  609  to  640. 


CH.  VL]  marriages  —  INCIDENTS    TO.  271 

no  power  by  a  change  of  domicil  to  alter  or  change 
them,  according  to  the  rule,  Nemo  potest  miitare  consilium 
suum  in  alteriiis  injiiriam ;  and  he  insists,  that  this  is  the 
opinion  of  jurists  generally.^  Thus,  if  by  the  law  of 
the  matrimonial  domicil  there  exists  a  community  of 
property  between  the  husband  and  the  wife,  and  they 
remove  to  another  place  where  no  such  community  ex- 
ists, the  rights  of  neither  party  are  changed  ;  and  the 
community  applies  in  the  same  manner  as  in  the  origi- 
nal domicil.^  And  on  the  other  hand,  if  no  such  com- 
munity exists  in  the  matrimonial  domicil,  a  transfer  of 
domicil,  to  a  place  where  it  does  exist,  will  not  create 
it ;  for  a  change  of  domicil  would  not  add  any  thing  to 
the  marriage  rights  in  the  case  of  an  express  contract, 
and  therefore  ought  not  to  do  so  in  that  of  a  tacit  con- 
tract.^ This  also  is  Dumoulin's  opinion.  He  says,  that 
this  is  controverted  by  some  authors ;  but  it  is  so  un- 
justly and  falsely.  Sed  controvertiint,  si  maritiis  iwstca 
cum  uxore  transtiderit  domiciliumj  an  deheat  attendi  illud, 
quod  erat  temi^ore  contractus,  an  vero  idtimwn,  quod  inveni- 
tiir  tem'pore  mortis;  et  istiid  idtimum  tenet  Salicetus,  et 
seqidtur  Alexander.  Sed  Jioc  non  solum  iniqinim ;  quia 
maritiis  de  loco,  in  quo  nihil  lucratur,  vel  tantum  quartam, 
posset  transferre  domicilium  ad  locum,  in  quo  totam  dotem 
lucraretur,  pj-mnoriente  uxore  sine  liheris.  Et  quod  sit 
falsum,  proho  per  text  em  dictcB  Legis,  Exigere  dotemJ^ 
Bouhier  makes  no  distinction  whatsoever  between  mo- 
vable property  and  immovable  property.^     Nor  does  he 


1  Bouhier,  Cout.  de  Bourg.  ch.  22,  ^  63  to  72. 

2  Ibid.  3  Ibid. 

4  Dig.  Lib.  5,  tit.  1,  1.  65,  De  Judicis  ;  ante,  ^  147 ;  Molin.  Comment, 
ad  Cod.  Lib.  1,  tit.  1,1.  1  ;  Molin.  Opera.  Tom.  3,  p.  555. 

5  Bouhier,  Cout.  de  Bourg.  ch.  22,  §  79,  80. 


272  CONFLICT    OF   LAWS.  [CH.  VL 

seem  to  recognize  any  distinction  between  property  ac- 
quired before  the  change  of  domicil,  and  that  acquired 
after  the  change  of  domicil.^ 

§  162.  Le  Brun  supports  the  like  opinion.  He  in- 
sists, that,  if  there  is  no  special  contract  of  marriage, 
the  law  of  the  place  where  the  marriage  is  celebrated, 
and  in  which  the  parties  are  domiciled,  governs  as  a 
tacit  contract ;  and  that  no  subsequent  change  of  domi- 
cil  can  change  the  legal  rights  of  the  parties,  even  as 
to  after  acquired  property.^  And  he  puts  the  case  of  a 
marriage  in  Paris,  and  a  subsequent  change  of  domicil 
of  the  parties  to  the  province  of  Bar,  where  the  sur- 
vivor is  by  custom  entitled  to  the  whole  property  in 
movables  by  survivorship  ;  and  holds,  that  if  either  die, 
the  movables,  whether  acquired  before  the  removal,  or 
after  the  removal,  are  governed  by  the  law  of  commu- 
nity, and  do  not  all  remain  to  the  survivor.  La  raison 
est,  qui  ce  seroit  changer  V cstahlissement  de  commiinaiite fait 
par  le  contrat,  ou  par  le  coutiime,  selon  lequcl  on  a  du  par- 
tager  les  meuhles  aussi  Men  que  les  conqiiets? 

§  163.  Bodenburg  puts  the  case  of  a  marriage,  in  a 
place  where  the  law  of  community  of  property  between 
husband  and  wife  prevails,  and  a  subsequent  removal 
to  another  place,  where  it  has  no  existence  ;  and  he 
asks,  if  the  community  still  subsists  in  the  new  domi- 
cil ?  lie  observes,  that  most  of  the  Dutch  jurists  are 
of  opinion  that  it  does  ;  and  in  this  opinion,  he  concurs 
to  this  extent,  that  the  community  will  continue,  until 
the  parties  have,  by  some  overt  act,  discarded  it ;  and 
then  it  will  cease.''     And  he  applies  the  same  principle 


1  Id.  ch.  22,  per  tot. 

2  Le  Brun,  Traill  de  la  Communaute,  Liv.  1,  ch.  2,  ^  55,  56,  p.  20. 

3  Ibid.  ;  ante,  ^  151. 

4  Rodenburg,  De  Div,   Stat.  Pt.  2,  tit.  2,  ch.  4,  ^  3,  4  ;  2  Boullenois, 
Appx.  p.  66,  67  ;  Id.  p.  85  to  p.  87  ;  Id.  Obser.  36,  p.  173  ;  ante,  ^  154. 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  273 

to  cases  of  dowry  by  the  customary  law,  holding,  that 
the  matrimonial  domicil  ought  to  prevail.-^ 

§  164.  Hertius  puts  the  following  question.  A  mar- 
riage is  contracted  in  a  place  where  the  civil  law  go- 
verns, (i.  e.  where  there  is  no  community) ;  and  after- 
wards the  couple  remove  to  a  place  where  the  law  of 
community  exists ;  and  to  the  inquiry,  whether  in  such 
a  case  there  is  a  community  in  the  acquisitions  of  the 
parties  after  the  removal,  he  answers  in  the  negative, 
adopting  the  doctrine  of  Rodenburg ;  and  he  gives  this 
reason  for  his  opinion  ;  that  it  is  not  pr(5bable  that  the 
married  couple,  who  did  not  agree  to  a  community  of 
goods  in  the  beginning,  intended  to  adopt  it  by  a  mere 
change  of  domicil.  Nam  fvobaUle  non  ed,  conjuges,  qui 
pactis  in  societatem  honorum  ah  initio  non  consensuerant,  sola 
domicilii  mutatione  earn  inducere  voliiisse?  In  the  more 
general  form  in  which  the  question  may  be  presented, 
whether  in  the  case  of  married  persons,  removing  from 
their  matrimonial  domicil,  where  a  community  of  pro- 
perty exists,  to  a  place  where  it  does  not,  they  are  to 
be  governed  by  the  law  of  the  matrimonial  domicil,  he 
evidently  adopts  the  affirmative,  citing  Rodenburg.^ 
And  he  applies  his  doctrine  to  immovable  property,  as 
well  as  movable  property,  making  an  exception,  how- 
ever, of  the  case  where  there  is  a  prohibitory  law  of 
the  country  of  the  sitiis^ 

§  1G5.   Paul  Voet  appears  to  maintain  the  doctrine 


1  Rodenburg,  De  Div.  Stat.  Pt.  2,  tit.  2,  ch.  4,  §  5  ;  2  Boullenois,  Appx. 
p.  66,  67  ;  Id.  p.  87  ;  ante,  ^  154. 

2  2  Hertii  Opera,  De  Collis.  Leg.  ^  49,  p.  145,  edit.  1737  ;  Id.  p.  205, 
edit.  1716. 

3  Id.  ^  48,  p.  145,  edit.  1737  ;  Id.  p.  206,  edit.  1710. 

4  Id.  ^  47,  48,  edit.  1737,  p.  144,  145  ;  Id.  p.  205,  edit.   1710. 


274  CONFLICT   OF   LAWS.  [CH.  VI. 

generally,  that  a  change  of  domicil  does  not  change  the 
effect  of  the  marriage  contract,  express  or  tacit.  Quid, 
si  maritus  alio  doiniciUum  posimodum  transtiilerit,  eritne  con- 
venimdus,  secundum  loci  statutwn,  in  qiiem  postremiim  sese 
recepit.  Non  equidem.  Quia  non  co  ipso,  qui  domiciUum 
transfer  at,  censetur  voluntatem  circa  facta  nuptialia  mutasse. 
Nisi  eadem  solemniias  in  actu  contrario  intercesserit.  Ac- 
cedit,  quod  ilia  pacta  solus  mutare  necpieat  maritus,  id  quod 
tamen  posset,  si  per  emigrationem  in  alium  locum,  ea  muta- 
rentur}  Merlin  maintains  the  like  opinion,  saying,  that 
if  a  couple  are  married  at  Paris,  meaning  at  the  time  to 
live  there,  and  afterwards  they  remove  to  Lyons ;  in 
such  a  case  the  community,  formed  at  Paris,  will  con- 
tinue as  to  property  acquired  at  Lyons.^ 

§  166.  Boullenois  holds  the  opinion,  (as  we  have 
seen,)  that  the  law  regulating  the  community  affects 
the  state  or  condition  of  the  parties,  and  is,  therefore, 
a  personal  law ;  and  accompanies  them  everywhere, 
and  affects  property,  wherever  situate.^  He  accord- 
ingly insists,  that,  if  by  the  law  of  the  matrimonial 
domicil  a  community  of  property  exists,  that  commu- 
nity extends  to  all  future  acquisitions,  whether  movable 
or  immovable,  even  in  places  to  which  the  parties  have 


1  Voet,  De  Stat.  §  9,  ch.  2,  n.  5,  6,  7,  p.  264,  2G6,  edit.  1716;  Id. 
p.  319,  .322,  edit.  1661  ;  Id.  ^  4,  ch.  2,  n.  16,  p.  127,  edit.  1710  ;  Id. 
p.  142,  edit.  1061;  Id.  ^  4,  ch.  3,  n.  9,  p.  134,  135,  edit.  1716;  Id.  p.  151, 
152,  edit.  1661;  post,  ^  168.  —  Paul  Voet  holds  all  such  contracts, 
whether  express  or  tacit,  to  be  real  and  not  personal  laws;  and  therefore 
not  directly  aflecting  property  out  of  the  territory  ;  but  only  indirectly,  by 
a  remedy  to  enforce  the  contract  against  ex-territorial  property.  Voet,  ad 
Statut.  ^  4,  ch.  3,  ^  9,  p.  134, 135,  edit.  1716  ;  Id.  p.  151,  152,  edit.  1661 ; 
post,  h  108;  Livermore,  Dissert.  ^  115  to  123,  p.  87  to  p.  92. 

2  Merlin,  Repertoire,  Communaute  de  Biens,  (^  1,  p.  111. 

3  Ante,  ^155;  1  Boullenois,  Obser.  29,  p.  736,  741,  750  to  754;  Id. 
p.  759  to  p.  770  ;  2  Boullenois,  Obser.  38,  p.  277  ;  17  Martin,  R.  607. 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  275 

afterwards  removed,  and  where  no  such  community 
exists.'  Pothier  has  adopted  the  opinion  of  Boullenois, 
that  the  law  of  community  is  to  be  deemed  a  personal 
law,  and  not  a  real  law;  and  he  also  adopts  the  doc- 
trine of  Dumoulin,  as  to  tacit  contracts.^  So,  that  he 
has  no  hesitation  in  declaring,  as  we  have  seen,  that 
the  law  of  the  matrimonial  domicil  governs  the  property 
everywhere.^  But  he  has  omitted  to  put  the  case  of  a 
change  of  domicil,  and  the  effects  which  it  would  pro- 
duce. In  another  place  he  has  laid  down  as  a  general 
principle,  that  a  change  of  domicil  delivers  all  persons 
from  the  empire  of  the  laws  of  their  former  domicil, 
and  subjects  them  to  the  new.^  What,  then,  ought  to 
be  the  effect  of  a  removal,  upon  property  acquired  in 
the  new  domicil  ? 

§  167.  Froland,  after  a  good  deal  of  hesitation,  has 
given  his  own  opinion  on  the  subject  to  this  effect.  In 
cases  where  there  is  an  express  contract  of  community 
of  property  between  the  husband  and  the  wife,  he  holds, 
that  a  change  of  domicil  does  not  alter  the  rights  of  the 
parties ;  and,  that  the  community  applies  to  property 
situate  where  the  community  is  unknown  as  well  as 
where  it  exists.^  But  where  there  is  no  express  con- 
tract, he  deems  the  law  of  community  as  purely  real, 
and,  therefore,  as  not  extending  beyond  the  matrimo- 
nial domicil.^     He  treats  the  notion  of  Dumoulin,  of  a 


1  2  Boullenois,  Observ.  38,  p.  277,  278,  283,  284,  285 ;  ante,  ^  155. 

2  Pothier,  Trait6  de  la  Communaut6,  art.  Pr61im.  n.  10,  11,  12,  13; 
ante,  §  156. 

3  Ibid.  ;  ante,  ^  156. 

4  Polhier,  Cout.  d'Orl^ans,  ch.  1,  n.  13;  ante,  ^  51  a,  6  15G. 

5  1  Froland,  M6m.  Pt.  2,  ch.  1,  ^  10,  11,  p.  200  to  p.  210  ;  Id.  p.  341 ; 
Id.  p.  190. 

6  1  FroIand,M6m.  Pt.  2,  ch.  3,  ^  9,10,  II,  p.  315  to  p.  338  ;  Id.  p.  341; 
ante,  ^  148,  note,  ^  149. 


276  CONFLICT    OF   LAWS.  [CH.  VI. 

tacit  contract  in  such  a  case,  as  a  mere  imaginary 
thing ;  words,  and  nothing  else ;  a  mere  subtilty,  phan- 
tom, and  chimera.  Ce  sont  la,  que  des  ixiroles,  et  ricn  au 
dela.  Mirificwn  illnd  Molinoei  acumen;  des  suUilites  c?' 
espjit ;  des  Idees  ;  des  Chimeres  ;  Enfin  des  moyens,  que 
la  seide  imagination  echavffee  produit.  Hac  grandiloquen- 
tid  etiam  3Iolincens  personat,  iamcn  aperte,  non  est  venimj 
quod  dicit}  The  conclusion,  to  which  he  arrives,  is, 
that,  if  two  persons  marry  without  any  contract  in  a 
place,  where  the  law  of  community  exists,  and  remove 
to  another  place,  where  it  does  not  exist,  the  change  of 
domicil  has  no  effect  whatsoever ;  hut  the  rights  of 
each  are  the  same,  as  if  they  had  remained  in  their 
matrimonial  domicil ;  and  the  acquisitions  of  immovable 
property,  situate  in  the  new  domicil,  do  not  fall  into 
community,  but  are  governed  by  the  law  rei  sitce.  As 
to  movables,  he  holds,  that  the  law  of  the  actual  domicil 
ought  to  govern.  2 

§  168.  There  are  many  other  jurists  who  maintain, 
that  the  law  of  community  among  married  persons  is 
real,  and  not  personal ;  and  among  these  the  most  dis- 
tinguished are  D'Argentre,  Dumoulin,  Paul  Voet,  and 
Vander  Meulen.^     According  to  them,  the  law  rei  sitae 


1  1  Froland,  M6m.  Pt.  2,  ch.  3,  ^  9,  p.  316. 

2  1  Froland,  Mem.  Pt.  2,  ch.  3,  ^  9,  10,  11,  p.  315  to  p.  323  ;  Id., 
p.  341.  —  I  confess  myself  under  some  difficulty  in  reconciling  what  is  here 
said,  with  what  Froland  seems  to  decide  in  the  next  chapter  (4th,)  §  3, 
p.  345,  &c.,  where  he  appears  to  hold,  that  a  woman  marrying  in  a  place, 
where  the  law  of  community  does  not  exist,  does  not,  by  removing  with 
her  husband  to  a  place,  where  it  does  exist,  acquire  any  right  of  commu- 
nity to  his  acquisitions  or  movables  in  the  latter. 

3  1  Boullenois,  Observ.  29,  p.  758  to  761,  765;  P.  Voet,  De  Stat.  §  4, 
ch.  3,  p.  134,  135,  (}  9,  edit.  1716;  Id.  p.  151,  152,  edit.  1661,  See  also 
J.  Voet,  ad  Pand.  Lib.  5,  tit.  1,  n.  101  ;  Merlin,  Communaut6  de  Biens, 
§  1,  art.  3,  p.  104,  110  ;    Bouhier,  Cout.  de  Bourg.  ch.  23,  ^  34.     See 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  27Y 

will  govern  in  all  cases,  where  there  is  no  express  or 
tacit  contract.  But,  then,  we  must  take  this  proposi- 
tion with  the  accompanying  qualification,  that  those  of 
these  jurists  who  admit  of  the  doctrine  of  a  tacit  con- 
tract, adopting  the  law  of  the  place  of  marriage,  (among 
whom  are  Dumoulin  and  Paul  Voet,)  also  hold,  that 
although  the  law  of  the  place  of  the  marriage  does  not 
directly  act  upon  the  property  in  a  foreign  country ; 
yet,  through  the  means  of  this  tacit  contract,  it  acts 
indirectly,  and  enables  the  parties  to  enforce  it  against 
that  property  by  a  proper  suit  in  rem} 

§  169.  Huberus  (as  we  have  seen,)  does  not  hesitate 
to  assert  the  doctrine,  that,  in  case  of  a  change  of 
domicil,  future  acquisitions  of  married  persons  are 
governed  by  the  law  of  their  actual  domicil,  and  not 
of  their  antecedent  matrimonial  domicil.^  Thus  after 
asserting  thp,t  in  Holland  there  is  a  community  of  pro- 
perty, and  in  Friesland  not;  he  says,  if  the  married 
couple  remove  from  the  one  province  (Holland)  to  the 
other  (Friesland,)  whatever  property  is  afterwards 
acquired,  ceases  to  be  common,  and  remains  in  distinct 
ownership  [cUsUnctis  projmeiatihus) ;  and  the  property 
before  held  in  community  remains  clothed  with  the 
same  legal  character  that  it  previously  possessed.^  And 
he  applies  this  doctrine  as  well  to  immovable  property, 
relying  upon  the  doctrine  of  tacit  consent,  or  tacit  con- 


Saul  V.  His  Creditors,  17  Martin,  R.  5!)8,  599  ;  Id.  588 ;  ante,  §  MS,  159, 
note, 

1  P.  Voet,  De  Statut.  ^  9,  ch.  2,  n.  5,  G,  7,  p.  264  to  p.  2G6,  edit. 
1716  ;  Id.  p.  319  to  p.  323,  edit.  1661  ;  ante,  ^  165,  note  ;  ante,  ^  147  ; 
post,  ^169;  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  7,  §  8, 
p.  612  to  p.  614. 

2  Ante,  ^  145.  3  ibid. 

CONFL.  24 


278  CONFLICT    OF   LAWS.  [CH.  VL 

tract  ;^  and  holding  the  opinion  of  Dumoulin ;  Quia 
f  actio  hen'e  extenditur  uhique,  sed  non  statidwn  menmty  hoc 
est,  sold  ef  merct  vi  statidi! 

§  170.  It  would  be  endless  to  recount  the  diversities 
of  opinion  among  foreign  jurists  on  this  subject,  follow- 
ing out  the  almost  infinitely  varied  cases,  which  the 
customs  and  laws  of  different  provinces  and  countries 
have  brought  before  them.  According  to  the  opinion 
of  the  Supreme  Court  of  Louisiana,  already  citecl,^  the 
greater  number  of  foreign  jurists  are  of  opinion,  that, 
in  settling  the  rights  of  husband  and  wife,  on  the  dis- 
solution of  marriage,  to  the  property  acquired  by  them, 
the  law  of  the  domicil  of  the  marriage,  and  not  of  the 
place,  where  it  is  dissolved  by  death,  is  to  be  the  guide.* 
It  is  probably  so  ;  but  there  is  more  difficulty  in  affirm- 
ing it,  where  there  has  been  a  change  of  domicil,  than 
where  there  has  been  no  such  change.  It  may  be  in- 
ferred, that  the  Scottish  law  has  adopted  the  rule,  that 
in  cases  of  community,  where  there  is  no  written  con- 
tract, the  law  of  the  domicil  of  the  parties  at  the  death 
of  either  of  them  regulates  the  disposal  of  the  property 
of  the  parties.^ 


1  Huberus,  Lib.  1,  tit.  3,  ^  9 ;  ante,  §  145. 

2  Livermore,  Diss.  ^  89,  p.  73,  74  ;  1  Froland,  M6m.  G3. 

3  Ante,  ^  157. 

4  Mr.  Justice  Porter,  in  delivering  the  opinion  of  the  Court  in  Saul  v. 
His  Creditors,  17  Martin,  R.  599  ;  ante,  ^  157. 

5  Fergusson  on  Marr.  and  Divorce,  346,  347;  Id.  361.  —  There  are 
some  remarks  of  Mr.  Burge  on  this  subject,  which  deserve  to  be  cited  in 
this  place.  "  In  hoc  igitur"  (says  he)  "conflictu  quibus  adstipulabimur? 
was  the  obvious  question  of  one  of  the  jurists,  after  he  had  been  review- 
ing these  discordant  opinions.  The  following  considerations  will  perhaps 
justify  a  concurrence  with  him  in  the  answer,  given  by  himself.  '  Mihi 
tutius  videtur,  adhairere  secundae  sententia;,  (qua;  negat  praedia  alibi  sita 
communicari,)  quam  non  solum  ratio  validissima  munit,  sed  et  prasstantes 
auctores,  et   consensus  aliquot  municipiorum  probant.'      1st.  The  law. 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  279 

§  171.  No  question  appears  to  have  arisen   in  the 
English  courts  upon  the  point,  which  we   have  been 


which  by  its  own  force  and  operation,  and  independently  of  contract,  gives  an 
interest  in  immovable  property,  is  a  real  law.  2d.  Immovable  property  is 
not  subject  to  the  power  of  a  real  law,  unless  such  law  exists  in  the  coun- 
try where  that  property  is  situated.  3d.  The  joint  interest,  which  the 
husband  and  wife  acquire  under  the  community  in  the  immovable  property 
of  each  other,  is  conferred  by  the  law  alone,  unless  that  law  be  con- 
trolled in  its  operation  by  a  tacit  agreement ;  such  an  interest,  therefore, 
will  not  be  acquired  in  immovable  property  situated  in  a  country  where 
the  law  of  community  does  not  exist.  4th.  If  a  tacit  agreement  could  be 
inferred  for  the  purpose  of  giving  to  the  law  of  community  a  more  exten- 
sive operation  than  belongs  to  the  quality  of  a  real  law,  it  might  with 
equal  propriety  be  inferred  for  a  similar  purpose  in  the  case  of  other  real 
laws,  i.  e.,  those  which  govern  the  succession  to  real  property,  &c.  A 
preference  of  the  law  of  the  country,  in  which  a  man  has  passed  his  life, 
to  that  of  another  country,  in  which  his  real  property  may  be  situated,  is 
as  natural  a  presumption  as  that  in  favor  of  the  law  of  tKe  matrimonial 
domicil.  5th.  It  cannot  be  said,  that,  because  the  title  is  conferred  by  the 
law,  as  the  consequence  of  the  marriage,  there  is  a  ground  peculiar  to  mar- 
riage for  admitting  the  presumption  of  a  tacit  agreement ;  because  no  such 
presumption  is  admitted  in  respect  of  other  titles  conferred  by  law  as  the 
consequence  of  marriage,  e.  g.  the  titles  to  douaire  and  droit  de  viduit6. 
6th.  The  laws,  which  confer  douaire,  and  le  droit  de  viduit^,  are  admitted 
by  all  jurists  to  be  real  laws  ;  and  consequently  they  attach  on  that  pro- 
perty only  which  is  situated  in  the  country  where  they  prevail,  and  they 
do  not  extend  to  that  which  is  situated  in  another  country,  and  no  tacit 
agreement  is  presumed  in  order  to  control  their  powers,  7th.  The  law 
establishing  a  community  in  immovable  property  is  not  essentially  distin- 
guished from  the  laws  of  douaire  and  viduit6,  in  any  one  of  those  particulars, 
which,  in  the  opinion  of  jurists,  determine  the  reality  or  personality  of 
laws,  and  consequently  the  extent  of  their  power.  There  does  not,  there- 
fore, appear  to  be  any  substantial  reason  for  allowing  the  law  of  commu- 
nity to  have  the  effect  of  a  personal  law,  and  to  attach  on  immovable 
property,  in  whatever  country  it  may  be  situated.  If  this  reasoning  be 
admitted,  the  community,  when  it  prevails  in  the  matrimonial  domicil,  will 
be  confined  to  such  immovable  property  as  is  situated  either  there,  or  in  a 
country,  in  which  a  similar  law  exists,  but  it  will  not  extend  to  such  pro- 
perty situated  in  a  country  where  a  similar  law  does  not  exist.  In  the 
preceding  observations,  the  law  of  community  has  been  considered  only 
as  it  affected  immovable  property.  Its  effect  on  personal  property  is  deter- 
mined by  other  principles.  According  to  a  principle  of  international  ju- 
risprudence, the  acquisition  of  movable  or  personal  property  by  the  opera- 


280  CONFLICT    OF   LAWS.  [CH.  VL 

discussing ;  that  is,  what  rule  is  to  govern  in  cases  of 
matrimonial  property,  where  there  is  no  express  nuptial 
contract,  and  there  has  heen  a  change  of  domicil.  But 
there  is  a  case,^  which,  Lord  Eldon  is  reported  to  have 
said,  was  founded  in  (a  nuptial)  contract ;  and  that,  if 
there  had  been  no  such  contract,  the  law  of  England 
(notwithstanding  the  domicil  of  the  parties  at  the  time 
of  their  marriage  was  in  France)  would  have  regulated 
the  rights  of  the  husband  and  wife,  who  were  domiciled 
in  England  at  the  dissolution  of  the  marriage  by  death.^ 
So  that,  according  to  this  doctrine,  the  law  of  the  ac- 
tual domicil  will  govern  as  to  all  property,  without  any 
distinction,  whether  it  is  property  acquired  antecedently, 
or  subsequently,  to  the  removal. 

§  171  «.  In  a  more  recent  case,  where  the  parties 
were  inhabitants  of  Prussia,  and  domiciled  there,  a 
question  arose  in  the  Court  of  Exchequer  upon  the  dis- 
tribution of  an  intestate's  estate  under  the  administra- 
tion of  the  court,  whether  the  wife,  being  a  distributee, 
was  entitled  in  equity,  upon  a  petition  by  her  husband 
for  the  amount,  to  have  any  of  the  money  settled  on 
her,  or  whether  the  whole  was  to  be  paid  to  him.  It 
appeared,  that,  by  the  laws  of  Prussia,  the  whole  of 
the  personalty  of  the  husband  and  wife  is,  during  the 


lion  of  law,  is,  as  will  be  presently  shown,  governed  by  the  law  of  its 
owner's  domicil.  The  community,  if  it  prevailed  in  the  matrimonial  do- 
micil, would  therefore  attach  on  the  movable  property  of  the  husband  and 
wife,  in  whatever  place  it  was  situated."  1  Burge,  Comment,  on  Col. 
and  For.  Law,  Pt.  1,  eh.  7,  ^  8,  p.  617  to  p.  019  ;  and  Lashley  v.  Hogg, 
cited  Id.  p.  623  to  p.  625. 

^  Lashley  v.  Hogg,  cited  in  Robertson's  Appeal  Cases,  4,  and  in  1 
Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  7,  §  8,  p.  623  to  p.  625  ; 
Feaubert  v.  Turst,  Prec.  Ch.  207. 

2  Ibid. 


CH.  VI.]  MARRIAGES INCIDENTS   TO.  281 

coverture,  at  the  absolute  disposal  of  the  husband ;  but 
on  the  death  of  either  it  is  divided  between  the  sur- 
vivor and  the  heirs  of  the  deceased.  The  man  made 
no  application  to  the  court ;  and  the  court  ordered  the 
whole  money  to  be  paid  over  to  the  husband.^  Here, 
we  see,  the  court  adopted  the  law  of  their  actual  domi- 
cil,  to  regulate  the  rights  of  the  parties  to  the  movable 
property. 

§  172.  In  America  there  has  been  a  general  silence 
in  the  States  governed  by  the  common  law.  But  in 
Louisiana,  whose  jurisprudence  is  framed  upon  the 
general  basis  of  the  Spanish  and  French  law,  the  point 
has  several  times  come  under  judicial  decision.  The 
law  of  community  exists  in  that  State  ;  ^  and  from  the 
frequency  of  removals  from  and  to  that  State,  it  is 
scarcely  possible  that  some  of  the  doctrines,  which  have 
so  much  perplexed  foreign  jurists,  should  not  be  brought 
under  review. 

§  173.  We  have  already  had  occasion  to  take  notice 
of  some  of  the  views  entertained  by  the  Supreme  Court 
of  Louisiana  upon  this  subject.^  It  has  been  very  pro- 
perly remarked  by  that  Court,  that  questions  upon  the 
conflict  of  the  laws  of  the  different  States  are  the  most 
embarrassing  and  difficult  of  decision  of  any  that  can 
occupy  the  attention  of  courts  of  justice."*  And  it  may 
be  added,  almost  in  their  own  language,  that  the  vast 
mass  of  learning  which  the  researches  of  counsel  can 
furnish,  leaves  the  subject  as  much  enveloped  in  obscu- 


1  Sawyer  v.  Shute,  1  Anstr.  R.  63.     See  also  Anstruther  v.  Adair,  2 
Mylne  &  Keen,  513. 

2  Civil  Code  of  Louisiana,  (1809,)   336,  art.  63  ;  New  Code,   (1825,) 
art.  2369  to  2393. 

3  Ante,  (}  157,  170.  4  Ibid. 

24* 


282  CONFLICT    OF   LAWS.  [CH.    VI. 

rity  and  doubt,  as  it  would  be,  if  one  were  called  upon 
to  decide,  without  the  knowledge  of  what  others  had 
thought  and  written  upon  it.^ 

§  174.  It  is  manifest,  that  the  great  body  of  foreign 
jurists,  who  maintain  the  universality  and  ubiquity  of 
the  operation  of  the  law  of  the  matrimonial  domicil, 
notwithstanding  any  subsequent  change  of  domicil, 
found  themselves  upon  the  doctrine  of  a  tacit  contract, 
which,  being  once  entered  into,  is  of  legal  obligation 
everywhere.^  The  remarks  of  the  Supreme  Court  of 
Louisiana  on  this  point  have  been  already  cited  ;  and 
certainly  they  have  a  great  tendency  to  shake  its  found- 
ation.^ If  the  law  of  community  be  a  real  law,  and 
not  a  personal  law,  it  would  seem  to  follow,  that  it 
ought  to  regulate  all  things  which  are  situate  within 
the  limits  of  the  country  wherein  it  is  in  force,  but  not 
elsewhere."*  The  most  strenuous  advocate  for  the  doc- 
trine of  tacit  contract  must  admit,  that,  if  by  the  sta- 
tute of  any  country  community  is  prohibited,  as  to 
property  there,  the  law  of  the  matrimonial  domicil 
ought  not  to  prevail  in  such  country,  in  contradiction 
to  its  own.  And  the  learned  Court,  above  referred  to, 
have  said,  that  they  can  perceive  no  solid  distinction 
between  the  case  of  a  real  statute,  and  a  prohibitory 
statute,  as  to  property  situate  in  that  country.^ 

§  175.  But  if  the  law  of  community  be  personal,  still 
there  is  strong  ground  to  contend,  that  the  personal  laws 


1  Mr.  Justice  Porter,  in  delivering  the  opinion  of  the  Court  in  Saul  v. 
His  Creditors,  17  Martin,  R.  571,  572. 

2  Ante,  ^  147  to  170. 

3  Saul  V.  His  Creditors,  17  Martin,  R.  599  to  G08  ;  ante,  §  157,  170. 

4  Mr.  Justice  Porter,  in  Saul  v.  His  Creditors,  17  Martin,  R.  601,  602. 

5  Ibid.     See  post,  ^  449  to  454. 


CH.  VL]  marriages INCIDENTS    TO.  283 

of  one  country  cannot  control  the  personal  laws  of 
another  country,  ipso  facto,  where  they  extend  to  and 
provide  for  property  within  the  jurisdiction  of  the  lat- 
ter. No  one  can  doubt,  that  any  country  has  a  right 
to  say,  that  contracts  for  community,  made  in  another 
country,  shall  have  no  operation  within  its  own  terri- 
tory. The  question,  then,  is  reduced  to  the  mere  con- 
sideration, whether  the  law  of  the  country  does  directly 
or  indirectly  provide  for,  or  repudiate,  the  community, 
as  to  property  locally  situate  within  it.^ 

§  176.  Upon  reasoning  to  this  eflect,  after  full  consi- 
deration, the  Supreme  Court  of  Louisiana  came  to  the 
conclusion,  that  the  law  of  community  must,  upon  just 
principles  of  interpretation,  be  deemed  a  real  law,  since 
it  relates  to  things  more  than  to  persons,  and  it  has,  in 
the  language  of  D'Aguesseau,  the  destination  of  pro- 
perty to  certain  persons,  and  its  preservation  in  view.~ 
The  Court,  therefore,  held,  that,  where  a  married  couple 
had  removed  from  Virginia,  (their  matrimonial  domicil,) 
where  community  does  not  exist,  into  Louisiana,  where 
community  does  exist,  the  acquests  and  gains,  acquired 
after  their  removal,  were  to  be  governed  by  the  law  of 
community  in  Louisiana.^ 

§  177.  This  doctrine  appears  to  be  in  full  accordance 


1  Saul  V.  His  Creditors,  17  Martin,  R.  573,  574  to  588  ;  1  Hertii  Ope- 
ra, De  Collis.  Leg.  ^  47,  p.  143,  144,  edit.  1737  ;  Id.  p.  294,  edit.  1716  ; 
post,  ^  449  to  454. 

2  Mr.  Justice  Porter,  in  Saul  v.  His  Creditors,  17  Martin  R.  593,  594, 
595,  606,  607;  D'Aguesseau,  CEuvres,  Tom.  4,  PI.  54,  p.  660,  4to 
edit. 

3  The  law  of  community  existed  in  Louisiana  under  the  Spanish  law, 
and  now  exists  under  the  Civil  Code  of  that  State.  Bruneau  v.  Bruneau's 
Heirs,  9  Martin,  R.  217;  Code  Civil  of  Louisiana,  (1809,)  336,  art.  o3  ; 
Revised  Code,  (1825,)  art.  2370;  Saul  v.  His  Creditors,  17  Martin,  R. 
573  ;  2  Kent,  Comm.  Lect.  28,  p.  183,  note,  3d  edit. 


284  CONFLICT    OF   LAWS.  [cH.  VL 

with  the  laws  of  Spain.  Those  laws  apply  the  same 
rule  to  cases  of  express  contract,  and  to  cases  of  tacit 
contract,  or  customary  law.  Where  there  is  an  express 
contract,  that  governs  as  to  all  acquisitions  and  gains 
before  the  removal.  Where  there  is  no  express  contract, 
the  customary  law  of  the  matrimonial  domicil  governs 
in  like  manner.  But  in  both  cases  all  acquisitions  and 
gains,  made  after  the  removal,  are  governed  by  the  law 
of  the  actual  domicil.^  The  present  revised  Code  of 
Louisiana  adopts  a  like  rule  ;  and  declares,  that  a  mar- 
riage, contracted  out  of  the  State  between  persons, 
who  afterwards  come  to  live  within  the  State,  is  subject 
to  the  community  of  acquests,  with  respect  to  such  pro- 
perty as  is  acquired  after  their  removal.^ 

§  178.  This  code  of  course  furnishes  the  rule  for  all 
future  cases  in  Louisiana  ;  but  the  discussions  in  that 
State  have  arisen  upon  antecedent  cases,  and  have  in- 
volved a  general  examination  of  the  w^hole  doctrine  upon 
principle  and  authority.  The  doctrine,  w^hich,  with  re- 
ference to  public  law,  has  been  thus  established  in  that 
State,  resolves  itself  into  two  fundamental  propositions. 
First ;  where  there  is  an  express  nuptial  contract,  that 
there  shall  be  a  community  of  acquests  and  gains  be- 
tween the  parties,  even  though  they  should  reside  in 
countries  where  different  laws  prevail,  that  agreement 
will  be  held  obligatory  throughout,  as  a  matter  of  con- 
tract, in  cases  of  the  removal  of  the  parties  to  another 
State ;  with  this  restriction,  however,  which  is  applica- 
ble to  all  contracts,  that  it  is  not  to  cause  any  prejudice 
to  the  citizens  of  the  country,  to  which  they  remove. 


1  Saul  V.  His  Creditors,  17  Martin,  R.  576  to  581,  607,  608. 

2  Code  Civil  of  Louisiana,  (1825)  art.  2370. 


CH.  VI.]  MARRIAGES INCIDENTS  TO.  285 

and  that  its  execution  is  not  incompatible  with  the  laws 
of  that  country.^  Secondly ;  where  there  is  no  such 
express  nuptial  contract,  the  law  of  the  matrimonial  do- 
micil  is  to  prevail,  as  to  the  antecedent  property ;  but 
the  property  acquired  after  the  removal  is  to  be  govern- 
ed by  the  law  of  the  actual  domicil.^  This  latter  propo- 
sition has  been  laid  down,  in  terms  unusually  strong,  by 
the  Supreme  Court  of  that  State.  "  Though  it  was  once 
a  question,  (say  the  Court,)  it  seems  noiu  to  be  a  settled 
principle,  that  when  a  married  couple  emigrate  from  the 
country,  where  the  marriage  was  contracted,  into  an- 
other, the  laws  of  which  are  different,  the  property, 
which  they  acquire  in  the  place,  to  which  they  have 
removed,  is  governed  by  the  laws  of  that  place."  ^  Upon 
these  propositions  the  Court  have  accordingly  decided, 
that,  where  a  couple,  who  were  married  in  North  Caro- 
lina, where  community  does  not  exist,  had  removed  to 
Louisiana,  where  it  does  exist,  the  property  acquired 
after  the  removal  was  to  be  held  in  community.*  And, 
in  another  case,  where  the  marriage  was  in  Cuba,  and 
there  was  a  special  contract,  that  there  should  be  a  com- 
munity according  to  the  custom  of  Paris,  in  whatever 
country  the  parties  might  reside ;  and  the  parties  re- 
move to  South  Carolina,  where  no  community  exists, 
the  contract  was  held  to  govern  the  property  acquired 


1  Mr.  Justice  Derbigny,  in  Murphy  v.  Murphy,  5  Martin,  R.  83  ;  Mr. 
Justice  Porter,  in  Saul  ?;.  His  Creditors,  17  Martin,  R.  605,  606. 

~  Mr.  Justice  Derbigny,  in  Gale  v.  Davis,  4  Martin,  R.  645  ;  Saul  v. 
His  Creditors,  17  Martin,  R.  605,  606  ;  Le  Breton  v.  Nouchet,  3  Martin, 
R.  60,  73, 

3  Mr.  Justice  Derbigny,  in  Gale  v.  Davis's  Heirs,  4  Martin,  R.  645, 
649. 

4  Mr.  Justice  Derbigny,  in  Gale  r.  Davis's  Pleirs,  4  Martin,  R.  645. 


286  CONFLICT    OP  LAWS.  [CH.  VI. 

in  the  latter  State.^  The  same  doctrine  has  been  main- 
tained in  New  York,  in  the  case  of  a  marriage  between 
French  subjects,  under  a  similar  stipulation  of  commu- 
nity and  of  mutual  donation  in  case  of  survivorship 
of  either  of  the  parties.^ 

§  179.  An  instance,  illustrative  of  the  exception  in 
cases  of  express  contract,  may  be  drawn  from  other  de- 
cisions in  Louisiana.  Upon  a  marriage  celebrated  in 
that  State,  the  parties  stipulated,  that  the  rights  of  the 
parties  should  be  governed  by  the  custom  of  Paris.  The 
question  was,  whether  the  parties,  residing  in  the  coun- 
try, were  competent  to  enter  into  a  nuptial  contract, 
stipulating,  that  the  effect  of  it  on  their  property  should 
be  governed  by  a  foreign  law.  The  Court  held,  that 
they  had  no  such  competency,  and  that  the  contract  was 
void.^ 

§  180.  A  still  more  striking  case  occurred  in  the  same 
State,  upon  some  of  the  doctrines  of  which,  as  stated  by 
the  Court,  there  may,  perhaps,  be  reason  to  pause ;  but 
the  grounds  are  nevertheless  stated  with  great  force. 
A  man  ran  away  with  a  young  lady  of  thirteen  j^ears 
of  age,  both  of  them  being  then  domiciled  in  Louisiana, 
without  the  consent  of  her  parents  or  guardian,  and  they 
went  together  to  Natchez  in  Mississippi,  and  were  there 
married,  and  soon  after  returned  to  New  Orleans,  the 
place  of  their  original  domicil.  The  wife  afterwards 
died,  while  they  were  living  in  Louisiana  ;  and  after 
her  death  her  mother  demanded  her  property,  as  it 


1  Mr.  Justice  Derbigny,  in  Murphy  v.  Murphy,  5  Martin,  R.  83  ;  Mr. 
Justice  Porter,  in  Saul  v.  His  Creditors,  17  Martin,  R.  605  ;  Mr.  Justice 
Derbigny,  in  Bourcier  v.  Lanusse,  3  Martin,  R.  581,  583. 

2  De  Couche  v.  Savatier,  3  Johns.  Ch.  R.  190,  211. 

3  Mr.  Justice  Derbigny,  in  Boucier  v.  Lanusse,  3  Martin,  R.  581.  See 
Code  Civil  of  France,  art.  1390. 


CH.  VI.]  MARRIAGES INCIDENTS  TO.  287 

would  descend  by  the  Louisiana  law.  The  Court  sus- 
tained the  demand.''  From  the  elaborate  opinion  deli- 
vered for  the  Court  by  Mr.  Justice  Derbigny,  the  fol- 
lowing extract  is  made,  as  highly  interesting.  "  With 
respect  (say  the  Court)  to  the  law  of  nations,  the  prin- 
ciple, recognized  by  most  writers,  may  be  reduced  to 
this ;  that  although  no  power  is  bound  to  give  effect, 
within  its  own  territory,  to  the  laws  of  a  foreign  coun- 
try ;  yet  by  the  courtesy  of  nations,  and  from  a  consider- 
ation of  the  inconveniences,  which  would  be  the  result 
of  a  contrary  conduct,  foreign  laws  are  permitted  to 
regulate  contracts  made  in  foreign  countries.  But  in 
order  that  they  may  have  such  effect,  it  must,  first,  be 
ascertained,  that  the  parties  really  intended  to  be  go- 
verned by  those  laws,  and  had  not  some  other  country 
in  contemplation  at  the  time  of  the  contract.  This 
being  previously  recognized,  the  government,  within 
the  bounds  of  which  such  foreign  laws  claim  admission, 
has  next  to  consider,  whether  the  enforcing  of  these 
laws  will  cause  no  prejudice  to  its  rights,  or  to  the 
rights  of  its  citizens. 

§  181.  "  Let  us  take  the  first  exception,  and  apply 
it  to  this  case.  Did  the  parties  really  intend  to  be  go- 
verned by  the  laws  of  the  Mississippi  Territory,  and  had 
they  not  in  contemplation,  at  the  time  of  contracting 
marriage,  their  return  to  this  country  ?  If  we  were  to 
judge  from  their  acts  alone,  there  could  be  no  hesitation 
in  saying,  that  they  went  to  Natchez  for  the  purpose 
only  of  contracting  marriage,  and  intended  to  come 
back,  as  soon  as  it  could  conveniently  be  done.  Their 
remaining  at  Natchez  only  a  few  weeks,  and  that  in  a 


1  Le  Breton  v.  Nouchet,  3  Martin,  R.  CO,  73. 


288  CONFLICT    OF   LAWS.  [CH.  VI. 

tavern,  their  return  to  New  Orleans  not  long  after,  and 
the  continuation  of  their  residence  there,  until  the  death 
of  the  wife,  would  amount  to  an  irresistible  proof,  that 
they  had  this  country  in  contemplation  at  the  time  of 
contracting  their  marriage.  But  it  is  alleged,  that  how- 
ever evident  their  intention  may  appear  from  these 
facts,  the  appellant  had  really  taken  the  resolution  to 
settle  at  Natchez.  Evidence  has  been  furnished  of  his 
declarations  to  that  purpose,  both  before  his  departure 
and  after  his  arrival  in  the  Mississippi  Territory.  One 
of  his  brothers  has  sworn,  that,  previous  to  his  leaving 
New  Orleans,  he  told  him  and  his  other  brothers,  that 
he  intended  to  stay  at  Natchez.  Other  persons  have 
deposed,  that  letters,  expressive  of  the  determination  of 
the  appellant  to  remain  there,  were  by  them  received 
from  him,  shortly  after  their  dates.  Without  question- 
ing the  propriety  of  the  admission  of  such  testimony, 
the  Court  is  satisfied,  that  it  is  insufficient  to  counter- 
balance the  weight  of  the  facts,  which  disclose  the  real 
intention  of  the  parties. 

§  182.  "But,  should  their  intention  still  remain  a 
subject  of  doubt,  we  have  next  to  consider,  whether  by 
permitting  the  laws  of  the  Mississippi  Territory  to  re- 
gulate this  case,  this  government  would  not  injure  its 
own  rights,  or  the  rights  of  its  citizens.  For,  a  foreign 
law  having  no  other  force,  than  that  which  it  derives 
from  the  consent  of  the  government,  within  the  bounds 
of  which  it  claims  to  be  admitted,  that  government 
must  be  supposed  to  retain  the  faculty  of  refusing  such 
admission,  whenever  the  foreign  law  interferes  with  its 
own  regulations.  A  party  to  this  marriage  was  one  of 
those  individuals,  over  whom  our  laws  watch  with  par- 
ticular care,  and  whom  they  have  subjected  to  certain 
incapacities  for  their  own  safety.     She  was  a  minor. 


CH.  VI.]  MARRIAGES INCIDENTS   TO.  289 

Has  she,  by  fleeing  to  another  country,  removed  those 
incapacities  ?  Her  mother  is  a  citizen  of  this  State ; 
she  herself  was  a  girl  of  thirteen  years,  who  had  no 
other  domicil  than  that  of  her  mother.  Did  she  not  re- 
main, notwithstanding  her  flight  to  Natchez,  under  the 
authurity  of  this  government  ?  Did  not  the  protection 
of  this  government  follow  her,  wherever  she  went  ?  If 
so,  this  government  cannot,  without  surrendering  its 
rights,  recognize  the  empire  of  laws,  the  effect  of  which 
would  be,  to  render  that  protection  inefficacious.  But 
the  laws  of  the  Mississippi  Territory,  as  stated  by  the 
parties,  do  not  only  interfere  with  our  rights,  but  are  at 
war  with  our  regulations.  By  our  laws  a  minor,  who 
marries,  cannot  give  away  any  part  of  his  property 
without  the  authorization  of  those,  whose  consent  is  ne- 
■  cessary  for  the  validity  of  the  marriage.  By  the  laws 
of  the  Mississippi  Territory  all  the  personal  estate  of 
the  wife  (that  would  embrace,  in  this  case,  every  thing, 
which  she  had)  is  the  property  of  the  husband.  Again; 
according  to  our  laws,  we  cannot  give  away  more,  than 
a  certain  portion  of  our  property,  when  we  have  forced 
heirs.  But  what  our  laws  thus  forbid,  is  permitted  in 
the  Mississippi  Territory.  And  shall  our  citizens  be 
deprived  of  their  legitimate  rights  by  the  laws  of  another 
government,  upon  our  own  soil  ?  Shall  the  mother  of 
Alexandrine  Dussuau  lose  the  inheritance  of  her  de- 
ceased child,  secured  to  her  by  our  laws,  because  her 
daughter  married  at  Natchez  ?  Shall  our  own  laws  be  re- 
duced to  silence  within  our  own  precincts,  by  the  superior 
force  of  other  laws  ?  If  such  doctrine  were  maintain- 
able, it  would  be  unnecessary  for  us  to  legislate.  In 
vain  should  we  endeavor  to  secure  the  persons  and  the 
property  of  our  citizens.  Nothing  would  be  more  easy, 
than  to  render  our  precautions  useless,  and  our  laws  a 

CONFL.  25 


290  CONFLICT   OF   LAWS.  [CH.   VI. 

dead  letter.  But  the  municipal  law  of  the  Mississippi 
Territory,  which  is  relied  upon  by  the  appellant,  is  not 
the  law  which  would  govern  this  case,  even  there.  The 
law  of  nations  is  law  at  Natchez,  as  well  as  at  New 
Orleans.  According  to  the  principles  of  that  law,  *  Per- 
sonal incapacities,  communicated  by  the  laws  of  any 
particular  place,  accompany  the  person,  wherever  he 
goes.  Thus,  he,  who  is  excused  the  consequences  of 
contracts  for  want  of  age  in  his  country,  cannot  make 
binding  contracts  in  another.'  Therefore,  even  if  this 
case  were  pending  before  a  tribunal  of  the  Mississippi 
Territory,  it  is  to  be  supposed,  that  they  would  recog- 
nize the  incapacity,  under  which  Alexandrine  Dussuau 
was  laboring,  when  she  contracted  marriage,  and  decide, 
that  such  marriage  could  not  have  the  effect  of  giving 
to  her  husband,  what  she  was  forbidden  to  give.  If 
that  be  sound  doctrine  in  any  case,  how  much  more  so 
must  it  be  in  one  of  this  nature ;  where  the  minor,  al- 
most a  child,  has,  in  all  probability,  been  seduced  into 
an  escape  from  her  mother's  dwelling,  and  removed  in 
haste  out  of  her  reach  ?  We  cannot,  here,  hesitate  to 
believe,  that  the  Courts  of  our  neighboring  Territory, 
far  from  lending  their  assistance  to  this  infraction  of 
our  laws,  would  have  enforced  them  with  becoming  se- 
verity. For,  if,  when  an  appeal  is  made  to  those  gene- 
ral principles  of  natural  justice,  by  which  nations  have 
tacitly  agreed  to  govern  themselves  in  their  intercourse 
with  each  other,  while  nations  entirely  foreign  to  one 
another  feel  bound  to  observe  them,  how  much  more 
sacred  must  they  be  between  governments,  who,  though 
independent  of  each  other  in  matters  of  internal  regu- 
lation, are  associated  for  the  purposes  of  common  de- 
fence, and  common  advantage,  and  are  members  of  the 
same  great  body  politic  ?  "  ^ 

1  Mr.  Justice  Derbigny  in  Le  Breton  v.  Nouchet,  3  Martin,  R.  60,  66,71. 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  291 

[§  182,  a.  Another  important  principle  was  recently 
recognized  in  Louisiana,  namely,  that  a  marriage  settle- 
ment, executed  in  another  State,  where  the  parties  at 
the  time  resided,  and  where  the  property  was  situated, 
if  valid  by  the  laws  of  the  place  where  made,  cannot  be 
affected  by  the  subsequent  removal  of  the  parties  to 
another  State.^] 

§  183.  In  general,  the  doctrines  thus  maintained  in 
Louisiana,  will,  most  probably,  form  the  basis  of  the 
American  jurisprudence  on  this  subject.  They  have 
much  to  commend  them  in  their  intrinsic  convenience 
and  certainty,  as  well  as  in  their  equity ;  and  they  seem 
best  to  harmonize  with  the  known  principles  of  the 
common  law  in  other  cases.  In  concluding  this  topic, 
the  following  propositions  may  be  laid  down,  as  those, 
which,  although  not  universally  established  or  recog- 
nized in  America,  have  much  of  domestic  authority  for 
their  support,  and  have  none  in  opposition  to  them. 

§  184.  (1.)  Where  there  is  a  marriage  between  par- 
ties in  a  foreign  country,  and  an  express  contract 
respecting  their  rights  and  property,  present  and  future, 
that,  as  a  matter  of  contract,  will  be  held  equally  valid 
everywhere,  unless,  under  the  circumstances  it  stands 
prohibited  by  the  laws  of  the  country  where  it  is  sought 
to  be  enforced.  It  will  act  directly  on  movable  pro- 
perty everywhere.  But  as  to  immovable  property  in  a 
foreign  territory,  it  will,  at  most,  confer  only  a  right  of 
action,  to  be  enforced  according  to  the  jurisprudence 
rei  sitcB? 


1  Young  V.  Templeton,  4  Louis.  Ann.  R.  254. 

2  See  Henry  on  Foreign  Law,  48,  49  ;  Id.  95  ;  ante,  ^  143  ;  Le  Breton 
V.  Miles,  8  Paige,  R.  2G1. 


292  CONFLICT    OF    LAWS.  [CH.  VI. 

§  185.  (2.)  Where  such  an  express  contract  applies 
in  terms  or  intent  only  to  present  property,  and  there 
is  a  change  of  domicil,  the  law  of  the  actual  domicil 
will  govern  the  rights  of  the  parties  as  to  all  future 
acquisitions.^ 

§  186.  (3.)  Where  there  is  no  express  contract,  the 
law  of  the  matrimonial  domicil  will  govern  as  to  all  the 
rights  of  the  parties  to  their  present  property  in  that 
place,  and  as  to  all  personal  property  everywhere,  upon 
the  principle,  that  movables  have  no  situs,  or  rather, 
that  they  accompany  the  person  everywhere.^  As  to 
immovable  property  the  law  m  sitce  will  prevail.^ 

§  187.  (4.)  Where  there  is  no  change  of  domicil,  the 
same  rule  will  apply  to  future  acquisitions,  as  to  pre- 
sent property.  (5.)  But  where  there  is  a  change  of 
domicil,  the  law  of  the  actual  domicil,  and  not  of  the 
matrimonial  domicil,  will  govern  as  to  all  future  acqui- 
sitions of  movable  property ;  and,  as  to  all  immovable 
property,  the  law  rei  sUce^ 


1  Ante,  §  171,  171  a.     [Ordronaux  r.  Rey,  2  Sandf.  Ch.  R.  45.] 

2  See  Stein's  Case,  1  Rose,  Bank.  Cases,  Appx.  481  ;  Selkrig  v. 
Davis,  2  Rose,  Bank.  Cas.  99  ;  S.  C.  2  Dow,  230,  250 ;  1  Burge,  Comm. 
on  Col.  and  For.  Law,  Pt.  1,  ch.  7,  ^  8,  p.  619. 

3  See  Henry  on  Foreign  Law,  48,  49  ;  1  Burge,  Comm.  on  Col.  and 
For.  Law,  Pt.  1,  ch.  7,  ^  8,  p.  618,  619. 

■*  How  will  it  be  as  to  personal  or  movable  property  antecedently  ac- 
quired. See  ante,  ^  178  ;  ante,  ^  157,  158.  — Mr.  Burge,  advening  to 
the  different  opinions  on  this  subject,  has  remarked  ;  "  According  to  the 
general  doctrine  of  jurists,  the  property  of  the  husband  and  wife,  whether 
it  be  acquired  before  or  after  the  change  of  domicil,  continues  subject  to 
the  law  of  community,  notwithstanding  they  have  removed  to  another 
domicil,  where  that  law  does  not  exist.  The  change  of  the  domicil  neither 
divests  them  of  any  right,  which  they  had  acquired  under  the  law  of  their 
matrimonial  domicil,  nor  confers  on  them  any  right,  which  they  could  not 
acquire  under  that  law.  If  the  law  of  community  existed  in  their  matri- 
monial domicil,  they  will  not  cease  to  be  in  community,  although  they 
should  have  acquired  another  domicil  in  a  country  where  no  law  of  com- 


CH.    VI.]  MARRIAGES INCIDENTS   TO.  293 

§  188.  (6.)  And  here,  also,  as  in  cases  of  express 
contract,  the  exception  is  to  be  understood,  that  the 


munity  was  established  ;  and  on  the  other  hand,  if  there  was  no  law  of 
community  in  their  matrimonial  domicil,  they  will  not  become  subject  to 
the  law  of  community,  because  they  have  taken  up  their  domicil  in  a 
country,  where  that  law  does  exist.  The  concurrence  of  jurists  in  this 
doctrine  is  so  general,  that  there  are  few,  who  have  dissented  from  it.  This 
doctrine  seems  to  result  as  a  necessary  and  legitimate  conclusion  from  the 
theory,  that  the  community  exists  by  force  of  the  tacit  agreement  of  the 
parties,  and  which  is  considered  of  the  same  weight  as  if  it  had  been  an 
express  agreement ;  because,  if  the  rights  of  the  parties,  either  in  their 
present  property,  or  in  their  future  acquisitions,  had  been  conferred  by  an 
agreement,  they  could  not  be  varied  by  a  change  of  domicil.  But  if  this 
theory  be  rejected,  and  the  law  of  community  has  no  greater  operation 
than  any  other  real  law,  it  can  never  be  necessary  to  consider  the  effect  of 
a  change  of  domicil  on  the  interests  of  the  husband  and  wife  on  their  real 
property,  because  those  interests  in  their  present  property,  as  well  as  in 
their  future  acquisitions,  are  determined  by  the  lex  loci  rei  sitae.  The 
application  of  this  doctrine  to  the  interests  acquired  by  the  husband  and 
wife  in  the  personal  property  of  each  other  under  the  law  of  their  matri- 
monial domicil,  so  far  as  it  regards  property  acquired  before  their  removal 
from  their  matrimonial  domicil,  might,  it  seems,  be  maintained  without 
the  aid  of  this  theory.  The  matrimonial  domicil  of  the  parties  may  be 
supposed  to  be  in  a  country,  where,  as  in  England,  the  marriage  is  an  ab- 
solute gift  to  the  husband  of  the  wife's  whole  personal  estate,  the  subse- 
quent domicil  may  be  in  a  country,  where,  as  in  British  Guiana,  the  wife, 
by  virtue  of  the  communio  bonorum,  retains  an  interest  in  her  own,  and 
acquires  an  interest  in  her  husband's  personal  property,  or  the  matrimonial 
domicil  may  have  been  in  British  Guiana,  and  the  subsequently-acquired 
domicil  in  England.  In  the  one  case  the  whole  personal  estate  of  the  wife 
has  become  vested  in  the  husband,  the  wife  brings  no  personal  property 
of  her  own  into  British  Guiana,  on  which  the  law  of  community  can 
attach.  In  the  other  case,  the  wife  arrives  in  England,  not  only  retaining 
an  interest  in  her  own,  but  having  acquired  an  interest  in  the  property  of 
her  husband.  The  law  of  the  matrimonial  domicil  has,  in  this  case, 
already  made  a  disposition  of  the  property  of  the  husband  and  wife  at  the 
time,  when  the  parties  and  the  property  were  subject  to  that  law.  In 
neither  case  could  the  law  of  the  new  domicil  be  admitted  without  divesting 
rights,  which  had  been  already  legally  acquired.  But  in  the  opinion  of  the 
greater  number  of  jurists,  not  only  the  property,  which  had  been  acquired 
by  the  husband  and  wife  before  their  removal  from  their  matrimonial 
domicil,  but  even  that  acquired  in  their  new  domicil,  is  subject  to  the  law 
of  the  matrimonial  domicil ;  and  their  opinion  has  been  sanctioned,  even  to 
25* 


294  CONFLICT    OF    LAWS.  [CH.  VL 

laws  of  the  place,  where  the  rights  are  sought  to  be 
enforced,  do  not  prohibit  such  arrangements.  For  if 
they  do,  as  every  nation  has  a  right  to  prescribe  rules 
for  the  government  of  all  persons  and  property  within 
its  own  territorial  limits,  its  own  law  in  a  case  of  con- 
flict ought  to  prevail.^ 

§  189.  (7.)   Although,  in  a  general  sense,  the  law  of 


this  extent,  by  the  decisions  in  France.  A  person  was  married  and  domi- 
ciled in  L.,  where  the  civil  law  prevailed.  He  afterwards  removed  to  Paris, 
and  established  his  domicil  there.  On  his  death  his  widow  demanded  a 
share  of  his  movables,  and  of  the  acquets  made  since  the  marriage.  By  an 
arret  of  the  29th  of  March,  1640,  her  demand  was  rejected.  A  similar 
decision  was  given  in  the  case  of  a  person  married  and  domiciled  in  Nor- 
mandy, who  afterwards  removed  to,  and  established  his  domicil  in,  Paris. 
A  demand  by  his  widow  for  a  share  of  the  acquets,  made  since  the  removal 
from  Normandy,  was  rejected.  The  application  of  this  doctrine  to  the 
acquisitions  of  personal  property  made  by  the  husband  and  wife  in  their 
new  or  actual  domicil,  can  only  be  sustained  by  means  of  the  theory  of  a 
tacit  agreement.  Even  its  advocates  do  not  all  concur  in  subjecting  future 
acquisitions  after  a  change  of  domicil,  to  the  law  of  the  matrimonial  do- 
micil. Thus,  Huber  was  of  opinion,  that  they  are  governed  by  the  law  of 
the  new  or  actual  domicil :  '  Cum  primum  vero.conjuges  migrant  ex  una 
provincia,  (where  the  community  prevailed,)  in  aliara,  (where  it  does  not 
prevail,)  bona,  quae  deinceps  alteri  adveniunt,  cessant  esse  communia,  ma- 
nentque  distinctis  proprietatibus  ;  sicut  res  antea  communes  factae,  manent 
in  eo  statu  juris,  quem  induerunt.'  But  if  the  law  of  community  be  a  real 
law,  its  power  as  to  personal  property  cannot  be  more  extensive  than  as  to 
real  property.  As  it  affects  only  such  real  property  as  is  actually  situated 
in  the  country  where  it  is  established,  so  it  affects  personal  property  only 
when  its  owner  is  actually  domiciled  in  the  country,  where  such  law  is 
established,  because  the  place  of  his  domicil  is  the  situs  in  fictione  juris  of 
his  movable  property.  The  real  law  as  to  personal  property  is  that, 
which  prevails  in  the  place  of  the  owner's  actual  domicil.  He  acquires 
and  holds  it  according  to  the  disposition  of  that  law,  and  it  depends  upon 
that  law,  whether  he  and  his  wife  acquire  it  for  their  joint  benefit  or  for 
his  sole  benefit."  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  7, 
^  8,  p.  619  to  p.  622.  Sec  also  Lashley  v.  Hogg,  cited  Id.  p.  623  to 
p.  625  ;  Id.  p.  626. 

1  See  Fergusson  on  Marr,   and  Divorce,  358  to  363  ;    Id.  383,  392  to 
422 ;  Huberus,  Lib.  1,  tit.  3,  De  Conflict.  Leg.  ^  2  ;  ante,  ^111. 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  295 

the  matrimonial  domicil  is  to  govern  in  relation  to  the 
incidents  and  effects  of  marriage ;  yet  this  doctrine 
must  be  received  with  many  qualifications  and  excep- 
tions. No  other  nation  will  recognize  such  incidents 
or  effects,  when  they  are  incompatible  with  its  own 
policy,  or,  injurious  to  its  own  interests.  A  marriage 
in  France  or  Prussia  may  be  dissolved  for  incompati- 
bility of  temper  ;  but  no  divorce  would  be  granted  from 
such  a  marriage,  for  such  a  cause,  in  England,  Scotland, 
or  America.*  "If"  (said  a  learned  Scottish  judge,  in  a 
passage  already  cited)  '-  a  man  in  this  country  were  to 
confine  his  wife  in  an  iron  cage,  or  beat  her  with  a  rod 
of  the  thickness  of  the  judge's  finger,  would  it  be  any 
justification  in  any  court  to  allege,  that  these  were 
powers,  which  the  law  of  England  conferred  on  a 
husband,  and  that  he  was  entitled  to  exercise  them, 
because  his  marriage  had  been  celebrated  in  that 
country  ? "  ^  And  he  added,  with  great  emphasis  ; 
"Marriage  is  a  contract  siii  generis ;  and  the  rights, 
duties,  and  obligations,  which  arise  out  of  it,  are  mat- 
ters of  so  much  importance  to  the  well-being  of  the 
state,  that  they  are  regulated,  not  by  the  private  con- 
tract, but  by  the  public  laws  of  the  state,  which  are 
imperative  upon  all  who  are  domiciled  within  its  ter- 
ritory." ^ 

§  190.  (8.)  The  doctrine  of  tacit  contract  to  regulate 
the  rights  and  duties  of  matrimony,  in  cases  where 
there  is  no  express  contract,  according  to  the  law  of  the 
place  where  the  marriage  has  been  celebrated,  is  ques- 


'  Fergusson  on  Marr.  and  Div.  398. 

2  Per  Lord  Robertson.     See  Fergusson  on  Marr.  and  Divorce,  399  ; 
Id.  361. 

3  Id.  399;  Id.  361. 


296  CONFLICT    OF   LAWS.  [CH.  VL 

tionable  in  itself ;  and,  even  if  admitted,  must  be  liable 
to  many  qualifications  and  restrictions.^  We  have  seen, 
that  it  has  been  much  doubted  in  Louisiana  ;  ^  and  the 
Scottish  Courts  have  utterly  refused  (as  we  shall  fully 
see  hereafter)  to  allow  the  doctrine  of  such  a  tacit  con- 
tract to  regulate  the  right  of  divorce.^ 

§  191.  But  a  question  may  sometimes  occur,  what  is 
to  be  deemed  in  the  proper  sense  of  the  rule  the  true 
matrimonial  domicil  ?  Is  it  the  place  where  the  actual 
marriage  is  celebrated  ?  Or  that  where  the  contract  of 
marriage  is  entered  into  ?  Or  that  where  the  parties 
are  domiciled,  if  the  marriage  is  celebrated  elsewhere  ? 
Or,  if  the  husband  or  wife  have  different  domicils, 
whose  is  to  be  regarded  ?  These,  and  many  other  per- 
plexing inquiries  may  be  raised ;  and  foreign  jurists 
have  not  passed  them  over  without  examination.'* 

§  192.  Where  the  place  of  domicil  of  both  the  par- 
ties is  the  same  with  that  of  the  contract  and  the  cele- 
bration of  the  marriage,  no  difficulty  can  arise.  The 
place  of  celebration  is  clearly  then  the  matrimonial  do- 
micil. But,  let  us  suppose  that  neither  of  the  parties 
has  a  domicil  in  the  place  where  the  marriage  is  cele- 
brated ;  but  it  is  a  marriage  in  transitu,  or  during  a 
temporary  residence,  or  on  a  journey  made  for  that  sole 
purpose,  animo  revertcndi ;  what  is  then  to  be  deemed 
the  matrimonial  domicil  ? 

§  193.  The  principle  maintained  by  foreign  jurists, 
in  such  cases,  is,  that,  with  reference  to  personal  rights 


1  Ante,  §  147  to  170. 

2  Saul  V.  His  Creditors,  17  Martin,  R.  598  to  607  ;  ante,  §  157. 
a  Fergusson  on  Marr.  &  Div.  358  to  363  ;  Id.  382,  393  to  422. 

*  See  on  this  subject,  1  Burge,  Coram,  on  Col.  and  For.  Law,  Pt.   1, 
ch.  6,  ^  2,  p.  244  top.  261. 


CH.  VL]  marriages — INCIDENTS   TO.  297 

and  rights  of  property,  the  actual  or  intended  domicil 
of  the  parties  is  to  be  deemed  the  true  matrimonial  do- 
micil ;  or,  to  express  the  doctrine  in  a  still  more  gene- 
ral form,  they  hold,  that  the  law  of  the  place,  where  at 
the  time  of  marriage  the  parties  intend  to  fix  their  do- 
micil, is  to  govern  all  the  rights  resulting  from  the  mar- 
riage. Hence,  they  would  answer  the  question  pro- 
posed, by  stating,  that  in  such  a  case  the  law  of  the 
actual  domicil  of  the  parties  is  to  govern,  and  not  the 
place  of  the  marriage  in  transitu} 

§  194.  But,  suppose  a  man,  domiciled  in  Massachu- 
setts, should  marry  a  lady  domiciled  in  Louisiana,  what 
is  then  to  be  deemed  the  matrimonial  domicil  ?  Foreign 
jurists  would  answer,  that  it  is  the  domicil  of  the  hus- 
band, if  the  intention  of  the  parties  is  to  fix  their  resi- 
dence there  ;  and  of  the  wife,  if  the  intention  is  to  fix 
their  residence  there  ;  and  if  the  residence  is  intended 
to  be  in  some  other  place,  as  in  New  York,  then  the 
matrimonial  domicil  would  be  in  New  York.  Roden- 
burg  lays  down  the  doctrine  in  explicit  terms ;  and 
gives  as  a  reason,  that  the  marriage  is  presumed  to  be 
contracted  according  to  the  laws  of  the  place  where 
they  intend  to  fix  their  domicil.  Quia  per  destinationem 
in  hcis  illis  domicilii  matrimonium  contradmn  esse  intelUgi- 
tur?  Boullenois  states  the  same  doctrine ;  and  says, 
that  ordinarily,  where  the  domicil  of  the  husband  and 


1  2  Boullenois,  Obser.  36,  p.  260  ;  Pothier,  Trail6  de  la  Communaut6, 
art.  Prelim,  n.  14,  15,  16  ;  Voet,  de  Statut.  §  9,  ch.  2,  ^  5,  6,  p.  264, 
edit.  1715  ;  Id.  p.  319,  320,  edit.  1661  ;  1  Burge,  Comm.  on  Col.  and  For. 
Law,  Pt.  1,  ch.  6,  ^,  2,  p.  244  to  p.  261. 

2  Rodenbiirg,  tit.  2,  ch.  5,  ^  15  ;  2  Boullenois,  Appx.  p.  47  ;  1  Boulle- 
nois, 11,  682,  683  ;  Id.  Obser.  29,  p.  802;  Voet,  De  Statut.  ^  9,  ch.  2, 
^  5 ;  p.  264,  edit.  1716  ;  Id.  p.  319,  320,  edit.  1601  ;  Le  Brun,  Traite  de 
la  Communaute,  Liv.  1,  ch.  2,  %  42,  43,  46,  47,  48. 


298  CONFLICT    OF   LAWS.  [CH.   VL 

that  of  the  wife  are  not  the  same,  the  law  of  the  hus- 
band's domicil  is  to  prevail,  unless  he  means  to  establish 
himself  in  that  of  his  wife.^  Dumoulin  is  equally  ex- 
pressive. Hinc  infertur  (says  he)  ad  qucBstionem  qiiotidia- 
nam  de  contractu  dotis  et  matrimonii,  qui  censetur  fieri  nan 
in  loco,  in  qiio  contraJiitur,  sed  in  hco  domicilii  viri ;  et  in- 
telKgitur,  non  de  domicilio  oj-iginis,  sed  de  domicilio  hahitor 
tionis  ipsius  viri,  de  quo  nemo  duhitat,  sed  omnes  conseniiiint.^ 
This  appears  also  to  be  the  opinion  of  Mascardus,  Bar- 
tholus,  Bouhier,  Pothier,  Merlin,  and  other  distinguished 
jurists.^ 

§  195.  Cujas  affirms  the  same  doctrine.  Sed  ex  eo 
contractu  midier  migravit  in  aliiim  locum,  id  est,  talis  est 
cmxtractus,  id  ex  eo  mulier  statim  migret  in  alium  locum. 
Ergo  non  is  locus  spectatur,  sed  ille,  in  quem  sit  migratio. 
Hac  ratione,  midier  non  agit,  uli  matrimonium  contraxit ; 
sed  uli  ex  matrimonio  migravit,  diveriit,  aid  aget.^  And  in 
so  doing,  he  does  no  more  than  affirm  the  very  doctrine 
of  the  Pandects.  Exigere  dotem  muUer  debet  illic,  uU 
maritus  domicilium  liabuit,  non  uU  instrumentum  dotale  con- 
scriptum  est ;  nee  eni?n  id  genus  contractus  est,  ut  eum  lo- 
cum spectari  oporteat,  in  quo  instrumentum  dotis  factum  est, 


A  1  Boullenois,  Obser.  29,  p.  802  ;  2  Boullenois,  Obser.  37,  p.  259,  260, 
265  ;  Voet,  De  Stat.  §  9,  ch.  2,  ^  5,  6,  p.  264,  265,  edit.  1715  ;  Id.  p.  319, 
320,  edit.  1661. 

2  Molinaei,  Comment,  ad  Cod.  Lib.  1,  tit.  1,  1.  1,  Conclus.  de  Statut. 
Molin.  Opera,  Tom.  3,  p.  5.55  ;  2  Boullenois,  Obser.  37,  p.  261. 

3  2  Boullenois,  Obser.  37,  p.  260  to  p.  265  ;  Pothier,  Trait6  de  laCom- 
munaut^,  art.  Prelim,  n.  14,  15,  16;  Bouhier,  Cout.  de  Bourg.  ch.  22,  i^  18 
to  28  ;  Merlin,  Repert.  Autoris.  Maritale,  ^  10,  art.  5,  p.  244  ;  Id.  Com- 
munaut^  de  Biens,  ^  1,  p.  Ill  ;  1  Burge,  Comm.  on  Col.  and  For.  Law, 
Pt.  1,  ch.  6,  ^  2,  p.  241  to  p.  261. 

4  Cujas,  ad  Legem,  Exigere  dotem,  Dig.  Lib.  5,  tit.  1,1.  65,  Cujaccii 
Opera,  Tom.  7,  p.  164,  edit.  1758.  See  also  Ford's  Curators  v.  Ford,  14 
Martin,  R.  577  ;  Le  Brun,  Traite  de  la  CommunauUi,  Liv.  1,  ch.  2,  ^  41  ; 
post,  ^  198. 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  299 

quam  etim,  in  ciijiis  domiciliiim  et  ipsa  muliei'  per  conditionem 
matrimonii  erat  reditura} 

§  196.  Iluberus  holds  very  decisive  language  on  the 
same  subject.  "  But  (says  he)  the  place  where  a  con- 
tract is  made,  is  not  so  exactly  to  be  looked  at,  but, 
that,  if  the  parties  have  in  contracting  had  reference  to 
another  place,  that  is  rather  to  be  regarded  ;  Contrax- 
isse  iinusquisque  in  co  loco  inteUigitur,  in  qiioj  tit  soiveret,  se 
obligavit^  Therefore,  the  place  of  the  marriage  contract 
is  not  so  much  to  be  deemed  the  place  where  the  nup- 
tial contract  is  made,  as  that  in  which  the  parties  con- 
tracting matrimony,  intend  to  live.  Thus,  it  daily  hap- 
pens, that  men  in  Friesland,  natives  or  sojourners, 
marry  wives  in  Holland,  whom  they  immediately  bring 
into  Friesland.  If  this  be  their  intention  at  the  time 
of  the  contract,  there  is  no  community  of  property, 
although  the  marriage  contract  is  silent,  according  to 
the  law  of  Holland ;  but  the  law  of  Friesland  in  this 
case  is  the  law  of  the  place  of  a  contract.^  Prainde  et 
hens  matrimonii  contracti  non  tam  is  est,  iibi  contractus  nup- 
tialis  iniliis  est,  quam  in  quo  contrahentes  matrimoniimi  exer- 
cere  voluerunt ;  ut  omni  die  sit,  homines  in  Frisia  indigenas 
aut  incolas,  diicere  uxores  in  HoUandia,  quas  inde  statim  in 
Frisiam  deduciint ;  idqve  si  in  ipso  contractu  ineiindo  pro- 
positum  liabeant,  non  oritur  communio  bonorum,  etsi  pacta 
dotaiia  sileant,  secundum  jus  Hollandice,  sed  jus  Frisice  in 
'hoc  casu  est  hco  contractus.'^ 

S  197.  Le  Brun  has  discussed  the  question  at  con- 


1  Dig.  Lib.  5,  tit.  1,  ^  65  ;  Pothier,  Pand.  Lib.  5,  tit.  1,  n.  .38. 

2  Dig.  Lib.  44,  tit.  7,  1.  21  ;  Pothier,  Pand.  Lib.  44,  tit.  7,  n.  21. 

3  Iluberus,  Lib.  1,  tit.  3,  ^  10  ;  S.  P.  Fergusson  on  Marr.  and  Div.  174  ; 
Yoet,  De  Statut.  ^  9,  ch.  2,  ^  5,  G,  p.  264,  265,  edit.  1715  ;  Id.  p.  319, 
320,  edit.  1661. 

4  Huberus,  Lib.  1,  tit.  3,  ^  10. 


300  CONFLICT    OF   LAWS.  [CH.  VL 

siderable  length,  and  has  arrived  at  the  same  conclusion. 
And  he  puts  the  case  of  a  person  domiciled  in  Nor- 
mandy, where  the  law  of  community  does  not  exist, 
who  marries  in  Paris,  without  any  contract,  where  the 
law  of  community  does  exist ;  and  he  holds,  that,  if  he 
has  not  changed  his  domicil,  but  returns  immediately 
to  Normandy,  the  law  of  Normandy  will  govern,  and 
no  community  of  property  will  exist  between  himself 
and  his  wife.^ 

§  198.  The  same  doctrine  has  been  repeatedly  acted 
on  by  the  Supreme  Court  of  Louisiana.  In  one  case 
of  a  runaway  marriage  (already  alluded  to)  in  another 
State  by  parties  domiciled  in  Louisiana,  who  immedi- 
ately afterwards  returned,  the  Court  held,  as  we  have 
seen,  that  the  law  of  Louisiana  governed  the  marriage 
rights  and  property.^  In  another  case,  where  the  par- 
ties were  married  in  one  State,  intending  immediately 
to  remove  into  another,  which  intention  was  consum- 
mated, the  Court  held,  that  the  marriage  rights  and 
property  were  governed  by  the  law  of  the  place  of  the 
intended  residence.  On  this  last  occasion,  the  Court 
said  ;  "  We  think  that  it  may  be  safely  laid  down  as  a 
principle,  that  the  matrimonial  rights  of  a  wife,  who 
marries  with  the  intention  of  an  instant  removal  for 
residence  into  another  State,  are  to  be  regulated  by  the 
laws  of  her  intended  domicil,  when  no  marriage  contract 
is  made,  or  one  without  any  provision  in  this  respect."  ^ 
In  the  same  case,  the  Court  also  recognized  the  general 
rule,  that,  where  the  husband  and  wife  have  different 


1  Le  Brun,  Traill  de  la  Communaule,  Liv.  1,  ch.  2,  ^  46  to  51,  ^  55. 

2  Le  Breton  v.  Nouchet,  3  Martin,  R.  60  ;  ante,  ^  78,  180. 

3  Ford's  Curators  v.  Ford,  14  Martin,  R.  574,  578. 


CH.  VI.]  MARRIAGES INCIDENTS    TO.  301 

domicils,  the  law  of  that  of  the  husband  is  to  prevail ; 
because  the  wife  is  presumed  to  follow  her  husband's 
domicil.^ 

§  199.  Under  these  circumstances,  where  there  is 
such  a  general  consent  of  foreign  jurists  to  the  doctrine 
thus  recognized  in  America,  it  is  not,  perhaps,  too  much 
to  affirm,  that  a  contrary  doctrine  will  scarcely  hereaf- 
ter be  established  ;  for  in  England,  as  well  as  in  Ame- 
rica, in  the  interpretation  of  other  contracts,  the  law  of 
the  place  where  they  are  to  be  performed,  has  been 
held  to  govern.^  Treated,  therefore,  as  a  matter  of  tacit 
matrimonial  contract,  (if  it  can  be  so  treated,)  there  is 
the  rule  of  analogy  to  govern  it.  And  treated  as  a 
matter  to  be  governed  by  the  municipal  law,  to  which 
the  parties  were,  or  meant  to  be,  subjected  by  their  fu- 
ture domicil,  the  doctrine  seems  equally  capable  of  a 
solid  vindication.^ 


1  Ford's  Curators  v.  Ford,  14  Martin,  577. 

2  Robinson  v.  Bland,  2  Burr,  R.  1077  ;  Lanusse  v.  Barker,  3  Wheaton, 
R.  101  ;  4  Cowen,  R.  513,  note;  2  Kent,  Comm.  Lect.  39,  p.  459,  3d 
edit.  ;  Fergusson  on  Marr.  and  Divorce,  341,  342,  395,  396,  416. 

3  See  Fergusson  on  Marr.  and  Divorce,  339  to  346, 


26 


302  CONFLICT    OF   LAWS.  [CH.  VII. 


CHAPTER  VII. 


FOREIGN   DIVORCES. 


§  200.  Having  thus  considered  the  operation  of  mar- 
riage upon  the  personal  capacity,  and  the  property  of 
the  parties,  in  the  place  of  its  celebration,  and  in  foreign 
countries,  we  next  come  to  the  consideration  of  the  im- 
portant subject  of  divorce.'  Marriage  is  not  treated  as 
a  mere  contract  between  the  parties,  subject  as  to  its 
continuance,  dissolution,  and  effects,  to  their  mere  plea- 
sure and  intentions.  But  it  is  treated  as  a  civil  institu- 
tion, the  most  interesting  and  important  in  its  nature  of 
any  in  society.  Upon  it  the  sound  morals,  the  domes- 
tic affections,  and  the  delicate  relations  and  duties  of 
parents  and  of  children,  essentially  depend.  On  this 
account,  it  has,  in  many  nations,  the  sanction  and  so- 
lemnity of  religious  obligation  superadded  to  it.^  And 
it  may  be  truly  said,  that  Christianity,  l)y  giving  to  it 
a  more  affectiiag  and  sublime  morality,  has  conferred 
upon  mankind  new  blessings  ;  and  has  elevated  wo- 
man to  the  rank  and  dignity  of  an  equal,  instead  of 
being  a  humble  companion,  or  a  devoted  slave  to  her 
husband. 

§  201.  It  is  not  my  design  to  enter  into  any  discus- 


1  See  on  this  subject,  1  Surge,  Comm.  on  Col.  and  For.  Law,  Pt.  l,ch. 
8,  ^  1,  p.  640  to  p.  668  ;  Id.  ^  2,  p.  668  to  p.  694. 

2  See  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  oh.  8,  ^  1,  p.  642, 
643  ;  post,  ^  209. 


CH.  VII.]  FOREIGN   DIVORCES.  303 

sioD,  as  to  the  general  right  of  the  legislative  power  to 
authorize  directly  or  indirectly  a  dissolution  of  the 
matrimonial  state,  and  to  release  the  parties  from  all  the 
future  obligation  thereof.  It  is  deemed  by  all  modern 
nations  to  be  within  the  competency  of  legislation  to 
provide  for  such  a  dissolution  and  release,  in  some 
form,  and  for  some  causes.  And  there  is  no  doubt,  that 
a  divorce,  regularly  obtained  according  to  the  jurispru- 
dence of  the  country,  where  the  marriage  is  celebrated, 
and  where  the  parties  are  domiciled,  will  be  held  a 
complete  dissolution  of  the  matrimonial  contract  in 
every  other  country.^  I  say  where  the  marriage  is  cele- 
brated, and  where  the  parties  are  domiciled  ;  for  both 
ingredients  are,  or  may  be  material ;  and  the  presence 
of  one  and  the  absence  of  the  other  may  change  the 
legal  predicament  of  the  case,  according  to  the  jurispru- 
dence of  different  countries,  when  the  subject  comes  un- 
der consideration  therein. 

§  202.  The  real  difficulty  is  to  lay  down  appropriate 
principles  to  govern  cases,  where  the  marriage  is  cele- 
brated in  one  place,  and  the  parties  are  at  the  time 
domiciled  in  another ;  where  afterwards  there  is  a  change 
of  domicil  by  one  party,  without  a  similar  change  by 
the  other  ;  where  by  the  law  of  the  place  of  celebration 
the  marriage  is  indissoluble,  or  dissoluble  only  under  pe- 
culiar circumstances,  and  where,  by  the  law  of  another 
place,  it  is  dissoluble  for  various  other  causes,  and  even 
at  the  pleasure  of  the  parties.  By  the  law  of  England, 
marriage  is  indissoluble  except  by  a  special  act  of  par- 
liament.^    By  the  law  of  Scotland  a  divorce  may  be 


1  2  Kent,  Comm.  Lect.  27,  p.  107,  108,  3(1  edit. 

2  1  Black.  Comm.  440,  441  ;  1  Burge,  Comm.  on  Col.  and  For.  Law, 
Pt.  1,  ch.  8,  ^  1,  p.  654  to  p.  660. 


304  CONFLICT    OF   LAWS.  [CH.  VIL 

had  through  the  instrumentality  of  a  judicial  process, 
and  a  decree  on  account  of  adultery.^  By  the  civil  law 
an  almost  unbounded  license  Avas  allowed  to  divorces ; 
and  wives  were  often  dismissed  by  their  husbands,  not 
only  for  want  of  chastity,  and  for  intolerable  temper, 
but  for  causes  of  the  most  frivolous  nature.^  In  France 
a  divorce  may  be  judicially  obtained  for  the  cause  of 
adultery,  excess,  cruelty,  or  grievous  injuries  of  either 
party ;  and  in  certain  cases  by  mutual  and  persevering 
consent.^  In  America  an  equal  diversity  of  principle 
and  practice  exists.  In  some  States,  as  in  Massachu- 
setts and  New  York,  divorces  are  grantable  by  judicial 
tribunals  for  the  cause  of  adultery.^  In  other  States 
divorces  are  grantable  judicially  for  causes  of  far  infe- 
rior grossness  and  enormity,  approaching  sometimes  al- 
most to  frivolousness.  In  other  States  divorces  can  be 
pronounced  by  the  legislature  only,  and  for  such  causes, 
as  in  its  wisdom  it  may  choose  from  time  to  time  to 
allow.^ 


1  Fergusson  on  Marr.  and  Div.  1,  18  ;  Erskine's  Inst.  B.  1,  tit.  6,  ^  38, 
■13;  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  8,  §  1,  p.  670  to 
p.  680. 

2  2  Kent,  Comm.  Lect.  27,  p.  102,  103,  3d  edit.  ;  1  Brown,  Civ.  Law, 
89  to  92  ;  1  Black.  Comm.  441  ;  Justin  JSovellae,  117,  ch.  8  ;  Cod.  Lib.  5, 
tit.  17,  1.  8;  Merlin,  Repertoire  Divorce,  ^  2,  p.  149,  150;  Polhier, 
Trail6  de  Mariage,  art.  463;  Van  Leeuwen,  Comm.  B.  1,  ch.  15,  ^  1,  2,  3. 

3  Code  Civil,  art.  229  to  233  ;  Id.  275,  &c.  See  in  Fergusson  on  Mar- 
riage and  Divorce,  Appx.  448,  the  Prussian  Code  on  the  subject  of  Di- 
vorce ;  among  others,  incompatibility  of  temper,  endangering  life  or  health, 
is  a  good  cause  of  Divorce,  art.  703. 

4  This  also  is  the  law  in  Holland,  in  Prussia,  and  in  the  Protestant 
States  of  Germany,  in  Sweden,  Denmark,  and  Russia.  Fergusson  on  Marr. 
and  Divorce,  202. 

5  See  2  Kent,  Comm.  Lect.  27,  p,  106  to  110;  Id.  p.  117,  118,  3d  edit. 
See  also  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  8,  ^  1,  p.  640 
to  p.  668,  where  are  brought  together  in  a  general  review  the  laws  of  dif- 
ferent nations  on  the  subject  of  divorce. 


CH.  VII.]  FOREIGN   DIVORCES.  305 

§  203.  Some  of  the  most  embarrassing  questions  be- 
longing to  international  jurisprudence  arise  under  the 
head  of  marriage  and  divorce.  Suppose,  for  instance,  a 
marriage  celebrated  in  England,  where  marriage  is  in- 
dissoluble, and  a  divorce  obtained  in  Scotland  a  vinculo 
matrimonii,  as  it  may  be  for  adultery  under  the  laws 
thereof;  will  that  divorce  be  operative  in  England,  so 
as  to  authorize  a  new  marriage  there  by  either  party  ? 
Suppose  a  marriage  in  Massachusetts,  where  a  divorce 
may  be  had  for  adultery,  will  a  divorce  obtained  in  an- 
other State,  for  a  cause  unknown  to  the  laws  of  Massa- 
chusetts, be  held  valid  there  ?  If,  in  each  of  these  cases 
the  divorce  would  be  held  invalid  in  the  country,  where 
the  marriage  is  celebrated,  but  it  would  be  held  valid, 
where  the  divorce  is  obtained ;  what  rule  is  to  govern 
in  other  countries  as  to  such  divorce  ?  Is  it  to  be 
deemed  valid,  or  invalid  there  ?  Will  a  new  marriage 
contracted  there  by  either  party  be  good,  or  be  not 
good?  These,  and  many  other  perplexing  questions 
may  be  put ;  and  it  is  difficult  at  the  present  moment 
to  give  any  answer  to  them,  which  would  receive  the 
unqualified  assent  of  all  nations. 

§  204.  Other  most  perplexing  inquiries  juay  grow 
out  of  the  consideration  of  the  national  character  of  the 
parties ;  whether  they  are  both  citizens,  or  subjects,  or 
both  foreigners,  or  one  a  citizen,  and  the  other  a  fo- 
reigner ;  whether  the  marriage  is  celebrated  at  home,  or 
celebrated  abroad ;  whether  the  jurisdiction  of  any  court 
to  pronounce  a  decree  of  divorce  is  to  be  founded  upon 
the  national  character  of  the  parties,  or  upon  the  cele- 
bration of  the  marriage  within  the  territorial  jurisdic- 
tion, or  upon  the  domicil  of  the  parties  within  it,  or  upon 
the  actual  presence  or  temporary  residence  of  one  or 
both  of  them  at  the  time,  when  the  process  for  divorce 

26* 


306  CONFLICT    OF   LAWS.  [CH.  VIL 

is  instituted.  And  if,  upon  any  of  these  grounds,  the 
jurisdiction  is  sustained,  another  not  less  important  in- 
f[uiry  is,  whether  the  law  of  divorce  of  the  place  of  the 
marriage,  or  that  of  the.  place,  where  the  suit  is  insti- 
tuted, is  to  be  administered  by  the  court,  before  which 
the  suit  is  pending. 

§  205.  It  seems  to  have  been  thought,  that  under  the 
Scottish  law  it  is  not  necessary  to  found  a  jurisdiction 
for  divorce  in  the  courts  of  Scotland,  that  both  the  par- 
ties should  at  the  time  of  the  adultery  committed,  or  at 
the  time  of  the  suit  brought,  have  their  actual  domicil 
in  Scotland.  It  seems  to  be  sufficient,  that  the  defend- 
ant, against  whom  the  suit  is  brought,  is  domiciled  in 
that  kingdom,  so  that  a  citation  may  be  served  upon 
him,  and  that  a  divorce  under  such  circumstances  may 
be  granted,  whether  the  adultery  is  committed  at  home, 
or  in  a  foreign  country.  Undoubtedly  this  doctrine  is 
to  be  understood  with  the  limitation,  that  the  domicil  is 
real,  and  not  pretended,  and  that  it  is  bond  fide,  and  not 
by  collusion  between  the  parties  for  the  mere  purpose 
of  maintaining  the  suit  and  procuring  the  divorce.^ 


'  Fergusson  on  Marr.  and  Divorce,  Introd.  p.  16,  17,  18  ;  Id.  p.  51; 
Id.  p.  114,  115,  note;  St.  Aubyn  v.  Obrien,  Id.  Appx.  p.  276  ;  Id.  note 
B.  p.  363  to  p.  376;  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.8, 
-^  2,  p.  672,  674  to  679, 688,  689.  See  McCarthy  v.  De  Caix,  cited  in  a  note 
to  3  Hagg.  R.  642,  and  in  Warrender  u.  Warrender,  9Bligh,  R.  141,  142; 
Conway  v.  Beazley,  3  Hagg.  Eccles.  R.  639,  645,  646  ;  S.  C.  reported  at 
large  in  2  Russ.  &  Mylne,  614,  618,  619,  620  ;  Tovey  v.  Lindsay,  1  Dow, 
R.  115,  131,  135,  136,  1S7  ;  S,  C.  2  Clark  &  Fin.  569,  note  ;  post,  ^  216, 
217,  218.  See  also  Warrender  v.  Warrender,  9  Bligh,  R.  89,  144  ;  post, 
§  226  a  to  226  c.  Mr.  Chief  Justice  Gibson  in  delivering  the  opinion 
of  the  Supreme  Court  of  Pennsylvania,  in  a  case  of  divorce,  used  the 
following  language.  "In  constructing  our  international  law  of  divorce, 
we  naturally  look  for  the  materials  of  it  in  the  jurisprudence  of  our  ances- 
tors, whose  institutions  are  more  congenial  with  our  own  than  those  of 
their  continental  neighbors,  and  whose  process  of  forensic  discussion  is 


CH.  vil]  foreign  divorces.  307 

§  206.  A  learned  Scottish  jurist,  in  remarking  upon 
the  embarrassments  arising  out  of  this  state  of  the  law 


usually  more  exact.  But  we  find  an  irreconcilable  difference  betwixt  the 
decisions  of  the  English  and  of  the  Scottish  courts.  The  English  judges 
acknowledge  the  legitimacy  of  no  jurisdiction  which  is  not  founded  in  the 
law  of  divorce  at  the  place  of  the  marriage,  if  it  be  an  English  one  ; 
while  the  Scottish,  in  the  other  extreme,  are  willing  to  found  theirs  even 
on  a  temporary  residence  of  the  complainant  in  the  country  of  the  forum. 
Of  the  latter  pretension,  I  shall  say  little  more  than  that  it  is  in  truth  a 
usurpation  of  power,  to  intermeddle  in  the  domestic  concerns  of  a  neighbor. 
If  a  bona  fide  domicil,  in  the  strictest  sense  of  the  word,  were  not  essen- 
tial to  jurisdiction,  there  would  be  nothing  to  prevent  the  exhibition  of  a 
libel  by  a  proctor,  and  without  the  presence  even  of  the  complainant. 
But  the  respondent's  presence  would  be  more  essential  still ;  for  a  sentence 
against  one  who  was  not  subject  to  the  jurisdiction,  would  be  void  on  the 
plainest  principles  of  natural  law.  Moreover,  it  is  not  perceived,  how  the 
actual  presence  of  both  of  them  could  confer  jurisdiction  of  a  cause  of 
divorce,  which  was  not,  in  its  inception,  subject  to  the  law  of  the  forum. 
It  seems  to  me  the  fallacy  in  the  reasoning  of  the  Scottish  judges  —  plau- 
sible though  it  be  —  consists  in  their  assumption,  that  divorce  is  a  penalty 
everywhere  annexed  to  a  breach  of  the  marriage  contract,  which,  like  a 
civil  cause  of  action  attendant  on  the  person,  may  be  enforced  anywhere  ; 
thus  forgetting,  that,  whether  it  be  a  penalty  at  all,  depends  not  on  the 
Scottish  law,  as  an  interpreter  or  avenger,  but  on  the  law  of  the  domicil, 
or  else  on  the  lex  loci  contractus,  which  exclusively  furnishes  the  original 
conditions.  The  English  doctrine,  on  the  other  hand,  is  not  more  recon- 
cilable to  our  principle  of  finite  allegiance  ;  for  notwithstanding  the  doubt 
and  manifest  inclination  of  Doctor  Lushington,  in  Conway  v.  Beazley, 
(3  Hagg.  Eccles.  R.  369,)  I  take  it  to  be  settled  by  Lolley's  case, 
(I  Russ.  &  Ryan's  Crim.  Cas.  236,)  sanctioned  in  Tovey  v.  Lindsay 
(1  Dow,  R.  124,)  by  the  preponderating  weight  of  Lord  Eldon's  name, 
that  the  dissolution  of  an  English  marriage,  for  any  cause  whatever,  can 
be  effected  so  as  to  be  acknowledged  in  that  country  only  by  English 
authority.  It  was  indeed  intimated  in  Conway  v.  Beazley,  that  the  ques- 
tion of  jurisdiction  in  Lolley's  case,  perhaps,  turned  on  the  difference 
between  temporary  and  permanent  residence  ;  but  the  report  certainly 
does  not  indicate  it,  and  besides,  the  conclusion  attained  was  an  unavoid- 
able consequence  of  the  British  tenet  of  perpetual  allegiance.  Though 
an  English  subject  acquire  a  foreign  character  from  a  foreign  domicil, 
insomuch  as  to  be  treated  as  an  alien  for  commercial  purposes  ;  though 
he  formally  renounce  his  primitive  allegiance,  and  profess  another  ;  he  is 
accounted  but  as  a  sojourner  while  abroad,  and  England,  by  the  dogma  of 
her  government,  is  his  home,  and  his  country  still.     Holding  this  dogma, 


308  CONFLICT    OF   LAWS.  [CH.    VII. 

of  Scotland,  has  made  the  following  powerful  observa- 
tions. "  These  conclusions  evidently  demonstrate,  that, 
unless  the  remedy  in  this  judicature  shall  be  limited, 
either  to  that,  which  the.  Lex  loci  contractus  affords,  or 
to  that,  which  the  Lex  domicilii,  taken  in  the  same  fair 
sense,  as  in  questions  of  succession,  might  give,  the 
public  decrees  of  the  only  court  of  Scotland,  which  is 
competent  to  pronounce  one  in  such  consistorial  causes, 
become  proclamations  to  invite  all  the  married,  who 
incline  to  be  free,  not  in  the  rest  of  the  British  empire 
alone,  but  in  all  countries  where  marriage  is  indisso- 
luble by  judicial  sentence,  to  seek  that  object  in  this 
tribunal.  Adultery  and  presence  within  our  territory 
are  the  only  requisites  to  found  the  jurisdiction  by 
citation.  What  numbers  of  foreign  parties  may  accept 
such  an  offer,  and  may  even  commit  the  crime  here,  for 
the  very  purpose  of  affording  ground  for  the  action,  it 
is  impossible  to  conjecture.  But  it  is  manifest,  that,  in 
exact  proportion  to  their  number,  injury  to  the  morals 
of  this  country  must  follow ;  and,  by  setting  at  nought 


it  would  be  strange  did  she  tolerate  foreign  interference  with  her  domestic 
relations  within  our  pale.  Insisting  on  jurisdiction  of  his  person,  absent 
or  present,  she  necessarily  regards  an  attempt  to  change  any  one  of  these 
as  an  invasion  of  her  sovereignty;  and  in  that  aspect,  it  cannot  be  denied, 
that  the  matter  is  within  her  province  and  her  power :  for  though  the 
states  of  marriage  is  juris  gentium,  the  institution  is  undoubtedly  a  subject 
of  municipal  regulation.  And  it  is  this  perpetual  allegiance  to  the  country-, 
its  institutions,  and  its  laws  —  not  an  indissolubility  of  the  marriage  con- 
tract from  the  presumptive  will  and  reservation  of  the  parties  —  which  is 
the  root  of  the  English  doctrine.  It  truly  assumes,  that  marriage  is  con- 
tracted on  the  basis  of  the  laws,  and  that  these  forbid  a  British  subject  to. 
dissolve  it  by  the  authority  of  any  other  country  ;  but  take  aw^ay  the  law 
of  perpetual  allegiance,  and  you  take  away  the  foundation  of  the  presump- 
tive pledge  not  to  submit  the  duration  of  it  to  foreign  action."  Dorsey  v. 
Dorsey,  7  Watts,  349 ;  S.  C.  1  Chand.  Law  Reporter,  p.  SSg,  289.  See 
Maguire  v.  Maguire,  7  Dana,  R.  181. 


CH.  VII.]  FOREIGN   DIVORCES.  309 

the  laws  of  other  nations,  reproach  must  be  brought 
upon  our  own.  For  all  foreign  parties,  while  matters 
stand  upon  this  footing,  have  it  in  their  power,  with 
the  help  of  evidence,  as  easily  provided,  as  it  may  be 
disgusting  and  impure,  to  oblige  the  Scotch  Consistorial 
Court  to  entertain  the  whole  mass  of  their  foreign 
causes,  although  there  is  no  fair  interest  to  insist,  that 
the  municipal  law  of  Scotland  shall  decide  these  by  its 
own  peculiar  rules.  To  what  extent,  therefore,  the 
good  order  of  society  may  eventually  be  disturbed  by 
this  compulsory  abuse  and  pollution  of  its  jurisdiction, 
in  consequence  of  the  doubts  and  contests  that  must 
ensue,  as  to  rights  of  legitimacy  and  succession,  no  cal- 
culation can  be  made."  ^ 

§  207.  Upon  the  point,  what  is  the  rule  of  divorce,  a 
learned  Scottish  judge  has  made  the  following  remarks, 
in  a  case  depending  before  him  in  judgment.^  "With 
us,  the  laws  relative  to  divorce  are  founded  on  Divine 
authority.  How  can  a  person  withdraw  himself  from 
obedience  to  such  laws  ?  Are  these  laws  relaxed  as  to 
a  person  domiciled  in  Scotland,  because  his  marriage  is 
contracted  in  a  country  where  the  law  of  divorce  is 
different  ?  If  two  natives  of  Scotland  were  married  in 
France  or  Prussia  according  to  the  laws  of  those  coun- 
tries, the  marriage  would  no  doubt  be  valid  here.  But 
would  they  be  entitled  to  come  into  the  Commissary 
Court,  and  insist  for  a  dissolution  a  vinculo  matrimonii, 
merely  because  their  tempers  were  not  suitable,  which, 
in  France,  was  a  ground  of  divorce,  or  for  any  of  the 
numberless  reasons  for  dissolving  a  marriage,  which  are 


'  Fergusson  on  Marr.  and  Div.  Introd.  p.  18,  19. 

~  Loid  Robertson;  The  Cases  of  Edmonstone,  of  Levelt,  and  of  Forbes, 
in  Fergusson,  Appx.  383  ;  Id.  398.     See  also  Id.  415. 


310  CONFLICT    OF   LAWS.  [CH.  VIL 

allowed  by  the  laws  of  Prussia  ?  But,  if  we  would  not 
listen  to  the  Lex  loci,  when  it  flicilitates  divorce  to  a 
degree  which  our  law  considers  as  inconsistent  with  the 
best  interests  of  society,  and  as  not  warranted  by  the 
Divine  law,  on  what  principle  are  we  to  give  effect  to 
Ihe  Lex  loci,  which  prohibits  divorce,  even  adulterii 
causa,  though  permitted  in  this  country  under  the 
sanction  of  the  Divine  law  ?  " 

§  208.  These  passages  are  sufficiently  significant,  as 
to  the  intrinsic  difficulties  of  the  subject,  looking  only 
to  the  law  of  divorce  of  a  single  country.  But,  when . 
we  look  at  the  almost  endless  diversities  of  foreign  con- 
tinental jurisprudence  on  the  same  subject,  and  the 
little  regard  which  is  habitually  paid  in  that  jurispru- 
dence to  the  decrees  of  foreign  courts,  especially  in 
matters  which  concern  persons  belonging  to  any  other 
continental  sovereignty;  it  ought  not  to  surprise  us, 
that  one  nation  should  hold  its  own  law  of  divorce  of 
universal  obligation  and  authority,  and  that  another 
should  yield  it  up  in  favor  of  the  law  of  the  domicil  of 
the  parties. 

§  209.  Upon  the  continent  of  Europe  there  has  long 
existed  a  known  distinction  between  the  Catholics  and 
the  Protestants  upon  the  subject  of  divorce.  The 
former,  according  to  the  doctrine  of  the  Romish  Church, 
consider  marriage  as  a  sacrament,  and  in  its  effects  to 
be  governed  by  the  Divine  law  ;  and  according  to  their 
interpretation  of  that  law  it  was  formerly  held  to  be 
indissoluble.^     The  Protestants,  on  the  contrary,  have 


1  See  Fergusson  on  Marr.  and  Divorce,  Appx,  note  M.  p.  443 ; 
Heinecc.  Elera.  Juris.  Germ.  tit.  14,  ^  328  to  332  ;  Dalrymple  w.  Dal- 
rynnple,  2  Hagg.  Consist.  R.  63,  64,  67  ;  1  Burge,  Comm.  on  Col.  and 
For.  Law,  Pt.  1,  ch.  8,  ^  1,  p.  642,  643. 


CH.  VII.]  FOREIGN   DIVORCES.  311 

not  generally  considered  it  as  a  sacrament ;  but  many, 
if  not  all  of  them,  have  considered  it  mainly  as  a  civil 
institution,  and  subject  to  the  legislative  authority,  as 
matter  of.  public  police  and  regulation.^ 

§  210.  In  Catholic  France,  we  are  informed,  that,  un- 
til some  time  after  the  revolution,  (until  1792,)  marriage 
was  always  treated  as  indissoluble.^  "Our  Church" 
(sa3's  Merlin)  "  never  approved  of  divorce,  properly  so 
called.  It  has  always  regarded  it  as  contrary  to  the 
precept,  Quod  Dens  coiy'unxU,  homo  nan  separet ;  What 
God  hath  joined  together,  let  not  man  put  asunder.^  It 
is,  therefore,  a  perpetual  maxim  among  us,  that  mar- 
riage cannot  be  dissolved  by  means  of  a  divorce."  *  Po- 
thier  says ;  Marriage  is  not  dissolved,  but  by  the  natu- 
ral death  of  one  of  the  parties ;  while  they  live,  it  is  in- 
dissoluble.^ He  adds,  that,  though  divorce  was  permit- 
ted by  the  Christian  Emperors,  the  Church  regarded  it 
as  prohibited  by  the  Gospel ;  and  that  it  is  not  permit- 
ted by  the  French  law  for  any  cause  whatsoever.^ 

§  211.  Protestants  have  dealt  differently  by  it.'^  In 
Scotland,  which  proposes  on  this  subject  to  be  governed 


1  1  Black.  Comm.  433  ;  2  Haag.  Consist.  R.  63,  67;  1  Burge,  Comm. 
on  Col.  and  For.  Law,  Pt.  1,  ch.  8,  ^  1,  p.  648,649;  Id.  p.  650  top.  653, 

2  We  have  already  seen,  that  by  the  Code  Civil  of  France,  art.  229  to 
233,  divorce  is  allowed  in  a  variety  of  cases.  Upon  the  restoration  of  the 
Royal  Family,  in  1816,  it  seems  that  the  existing  law  of  divorce  was 
abolished.  Merlin,  Repertoire,  Divorce,  ^  4,  p.  161.  Whether,  since 
the  revolution  of  1830,  it  has  been  reinstated,  I  am  not  at  this  moment 
able  to  say.  See  Duranton,  Cours  de  Droit  Francaise,  Vol.  14,  p.  535, 
note. 

3  Matthew,  ch.  19,  v.  6. 

4  Merlin,  Repertoire,  Divorce,  ^  3,  p.  15J. 

5  Pothier,  Trait6  du  Mariage,  n.  462. 

6  Pothier,  Traits  du  Mariage,  n.  464. 

7  Id.  n.  465  ;  ante,  §  209. 


312  CONFLICT    OF   LAWS.  [CH.  YIL 

exclusively  by  the  Scriptures,  divorce  is  allowed  for  the 
Scriptural  causes,  for  adultery,  and  for  wilful  desertion.^ 
In  many  other  Protestant  countries,  it  is  not  treated  as 
indissoluble,  except  for  Scriptural  causes ;  but  it  may 
be  dissolved  for  other  causes.  In  England,  it  is  ne- 
ver dissolved,  except  by  an  act  of  Parliament,  and  for 
adultery.^  In  the  Protestant  continental  nations  of 
Europe  many  other  causes  of  divorce  are  known ;  and 
in  America,  as  we  have  seen,  it  is  generally  treated  as 
a  matter  of  civil  regulation.^ 

§  212.  The  conflict  of  laws  on  the  subject  of  divorce 
does  not  seem  to  have  undergone  much  discussion 
among  the  continental  jurists  ;  at  least  I  have  not  been 
able  to  trace  any  systematic  examination  of  the  subject 
in  those  works  which  are  within  my  reach,  and  in  which 
almost  all  other  topics  of  the  conflict  of  laws  are  so 
amply  treated.  The  silence  of  the  French  jurists  may 
be  accounted  for,  in  a  great  measure,  from  the  uniform- 
ity of  operation  of  the  Catholic  religion  and  its  canons 
over  all  the  provinces  of  that  kingdom  ;  from  the  strong 
probability,  that  few  cases  of  foreign  divorces  between 
French  subjects  were  ever  judicially  examined ;  and 
from  the  natural  conclusion,  that,  as  in  their  view 
Christianity  made  the  marriage  union  indissoluble,  no 
earthly  tribunal,  either  foreign  or  domestic,  could  right- 
fully pronounce  a  sentence  of  divorce.  The  silence  of 
other  Catholic  countries  may  be  accounted  for  in  the 


1  Erskine's  Inslit.  B.  1,  tit.  6,  §  43,  44  ;  Fergusson  on  Marr.  and  Div. 
Appx.  note  H.  p.  423. 

2  Ante,  ^  202. 

3  See  1  Black.  Comm.  441  ;  Code  Civil  of  France,  art.  229  to  233  ; 
Fergusson  on  Marr.  and  Div.  Appx.  note  N.  p.  448;  2  Kent,  Comm. 
Lect.  27,  p.  95  to  p.  106,  3d  edit.  ;  Van  Leeuwen,  Comm.  B.  1,  ch.  .15, 
M  to  6. 


CH.  YII.]  FOEEIGN   DIVORCES.  313 

same  way.  But  it  is  not  so  easy  to  assign  a  satisfac- 
tory reason  for  the  omission  of  the  Protestant  conntries 
of  the  continent  of  Europe  to  discuss  the  subject  at 
large.  It  is  highly  probable,  that,  in  those  countries, 
the  parties  have  been  referred  to  their  own  matrimonial 
forum,  either  to  furnish  the  true  rule  to  expound  the 
contract,  or  to  administer  the  law  of  divorce,  or  for  both 
purposes.  This  course  has  not  been  without  example, 
even  in  our  own  country,  upon  cases  bearing  a  close 
affinity.^ 

§  213.  Merlin  has  treated  the  question  purely  as  one 
arising  under  the  French  law,  either  with  reference  to 
the  allowance  of  divorces  under  the  legislation  of  1792, 
or  with  reference  to  the  prohibition  of  divorces  after 
the  restoration  of  the  Bourbons  in  1816.^  He  asks  the 
question,  whether,  in  virtue  of  the  new  law  (of  1792) 
which  introduced  divorce,  a  marriage  celebrated  under 
the  old  law,  which  prohibited  divorce,  could  be  dis- 
solved ;  and  vice  versa,  whether  a  marriage  celebrated 
after  the  new  law,  which  permitted  divorce,  could  be 
dissolved  after  the  promulgation  of  the  law  (of  1816) 
which  prohibited  divorce.^  He  says,  that  if  divorce 
was,  as  the  state  of  the  parties  {Vetat  des  ej)otix),  the 
immediate  effect  and  simple  consequence  of  the  mar- 
riage, the  question  might  be  easily  answered."*  Upon 
this  hypothesis,  as  the  state  of  the  parties,  the  right  of 
divorce  would  depend  altogether  upon  the  law  at  the 
time  when  the  marriage  was  celebrated  ;  because  then, 
in  the  first  case  put,  the  contract  must  be  deemed  one 


1  2  Kent,  Comm.  Lect.  27,  p.  108,  3d  edit. 

2  Ante,  ^  210, 

o     3  Merlin,  Repertoire,  Effet  R6troactif,  ^  3,  n.  2,  art.  6. 

4  Id.  ^  3,  n.  2,  art.  6,  p.  19. 
CONFL.  27 


314  CONFLICT    OF   LAWS.  [CH.    VII. 

for  an  indissoluble  union ;  and  in  the  second  case,  a 
contract  dissoluble  for  the  proper  causes  of  divorce.^ 
But,  he  goes  on  to  state,  that  divorce  does  not  depend 
upon  the  intention  of  the  parties,  nor  is  it  a  conse- 
quence, or  interpretation  of  it.  The  legislature,  in 
allowing  or  prohibiting  divorce,  has  regard  only  to  con- 
siderations of  public  order,  and  not  to  the  mere  con- 
tract of  the  parties.  They  are  not  permitted  by  pri- 
vate agreement  to  change  the  laws,  or  to  make  a  mar- 
riage dissoluble  or  indissoluble  in  contravention  of  the 
policy  of  the  State.^  He,  therefore,  comes  to  the  con- 
clusion, that  in  a  French  court  a  divorce  in  such  case 
would  be  granted,  or  denied,  according  to  the  law  of 
France  at  the  time  of  the  suit.^ 

§  214.  The  question,  how  a  marriage  in  *a  foreign 
country  between  French  subjects,  or  between  foreign- 
ers, would  be  affected  by  a  naturalization  or  domicil  in 
France,  is  not  here  touched.  In  another  work,  how- 
ever, treating  of  moot  questions,  he  has  recently  dis- 
cussed the  point.  He  asks,  whether  French  subjects, 
married  in  France  since  the  repealing  act  of  1816,  who 
have  abandoned  their  country,  and  become  naturalized 
in  a  country  where  divorce  is  allowed,  could  institute  a 
suit  there,  and  dissolve  their  marriage  by  a  decree  of 
divorce  pronounced  there  by  mutual  consent.  He  sup- 
ports the  affirmative  upon  the  general  reasoning,  by 
which  he  has  sustained  the  doctrine  in  the  preceding 
paragraph.^  It  would  seem,  however,  from  his  own 
statement,  that  this  is  quite  an  open  question  in  France. 

§  215.  It  is  to  the  decisions  of  the  English  and  Scot- 


1   Ibid.  2  Ibid.  3  Ibid. 

^  Merlin,  Questions  de  Droit,  Divorce,  ^  H,  p.  350 ;  ante,  ^  213. 


CH.  VII.]  FOREIGN   DIVORCES.  315 

tish  Courts,  however,  that  we  must  look  for  the  most 
thorough  and  exact  discussion  of  this  subject.  From 
the  different  nature  of  the  respective  laws  of  England 
and  Scotland  upon  the  subject  of  divorce,  from  their 
national  union,  and  from  their  constant,  easy,  and  fa- 
miliar intercourse,  the  Courts  of  both  countries  have 
been  frequently  called  upon  to  pronounce  very  elabo- 
rate judgments  respecting  the  jurisdiction  and  law  of 
divorce  in  suits  and  contestations  before  them. 

§  216.  Several  questions  on  this  subject  have  been 
recently  discussed  in  the  Courts  of  Scotland.  One  is, 
whether  a  permanent  domicil  of  the  parties  is  indispen- 
sable to  found  a  jurisdiction  in  cases  of  divorce  in  the 
Scottish  tribunals ;  or  whether  a  citation  given  formally 
to  the  party  defendant,  or  left  at  his  dwelling-place  in 
Scotland,  after  he  has  been  forty  days  there,  is  suffi- 
cient to  subject  him  to  the  jurisdiction  of  those  courts 
in  a  suit  for  divorce.  In  the  case,  in  which  this  ques- 
tion was  principally  discussed,  the  marriage  was  cele- 
brated in  England ;  the  husband  many  years  afterwards 
abandoned  his  wife,  and  went  to  Scotland  to  reside  ; 
and  the  wife  commenced  a  suit  for  divorce  against  her 
husband  in  the  Scottish  Consistorial  Court.  The  Court 
were  of  opinion,  that  as  the  parties  were  English,  and 
never  cohabited  as  husband  and  wife  in  Scotland,  and 
there  was  no  proof,  that  the  husband  had  taken  up  a 
fixed  and  permanent  residence  in  Scotland,  the  suit 
ought  to  be  dismissed  upon  the  ground  of  a  want  oi 
jurisdiction.  Upon  appeal  the  decree  was  reversed  by 
the  superior  tribunal,  and  a  decree  of  divorce  was  ulti- 
mately pronounced.^ 


1  Utterton  v.  Tewsh,    Fergusson  on  Mair.  and  Divorce,  p.  1  to  p.  55  ; 
Id.  p.  56  to  p.  67. 


316  CONFLICT    OP   LAWS.  [CH.  VIL 

§  217.  The  leading  grounds  of  the  reversal  were  ; 
"  That  the  relation  of  husband  and  wife  is  a  relation 
acknowledged/z(re  gentium  ;  that  the  duties,  obligations, 
and  rights  to  redress  wrongs  incident  to  that  relation, 
as  recognized  by  the  law  of  Scotland,  attach  on  all  mar- 
ried persons  living  within  the  territory  and  subject  to 
that  law,  wheresoever  their  marriage  may  have  been 
celebrated ;  that  jurisdiction,  or  the  right  and  duty  of 
the  Courts  of  Scotland  to  administer  justice  in  such  mat- 
ters, over  persons  not  natural  born  subjects,  arises  from 
the  person  sued  being  resident  within  the  territory  at 
the  time  of  their  citation  and  appearance,  or  being  duly 
domiciled,  and  being  properly  cited  accordingly,  at  the 
instance  of  a  person  having  a  sufficient  interest  and  title, 
and  proceeding  in  due  form  of  law."  ^  The  result  of 
this  decision  is,  that  permanent  domicil,  or  the  animus 
remanendi,  is  not  necessary  to  found  the  jurisdiction. 
In  several  other  succeeding  cases,  the  Court  have  fol- 
lowed up  the  same  doctrine,  affirming  that  a  temporary 
residence  is  sufficient  to  found  the  jurisdiction,  notwith- 
standing the  permanent  jurisdiction  of  the  parties  is  in 
another  country.^ 

§  218.  This  doctrine  has  been  maintained  by  the  Scot- 
tish judges  with  great  ability  and  learning,  and  no  one 
can  read  their  reasoning  without  admitting  its  force. 
It  has  not,  however,  been  deemed  satisfactory  in  Eng- 
land. In  a  very  important  case  before  the  twelve  judges 
(Lolley's  case,)  where  English  subjects  were  married  in 


1  Utterton  v.  Tewsh,  Fergusson  on  Marr.  and  Div.  p.  155,  15G  ;  Id.  p. 
57  to  p.  67. 

2  Dunlze  v.  Levett,  Fergusson  on  Marr.  and  Div.  p.  68  to  p.  167  ;  Fd- 
monstone  v.  Lockhart,  Id.  p.  168  to  p.  208  ;  Butler  v.  Forbes,  Id.  p.  209 
to  p.  225  ;  Kibblewhite  v.  Rowland,  Id.  p.  226  to  p.  248 ;  Gordon  v.  Pye, 
Td.  p.  276  to  p.  362;  Id.  p.  383  to  p.  423. 


CH.  vil]  foreign  divorces.  317 

England,  and  afterwards  the  husband  went  to  Scotland, 
and  procured  a  divorce  a  vinculo  there,  and  then  re- 
turned to  England,  and  married  another  wife,  it  was 
decided,  that  the  second  marriage  was  void ;  and  the 
husband  was  guilty  of  bigamy.*  It  has  been  commonly 
supposed,  that  this  decision  proceeded  upon  the  broad 
and  general  ground,  that  an  English  marriage  is  inca- 
pable of  being  dissolved  under  any  circumstances  by  a 
foreign  divorce ;  and  so  it  seems  to  have  been  under- 
stood by  Lord  Eldon  on  a  later  occasion.^     It  has  been 


1  Lolley's  Case,  1  Russ.  &  Ryan's  Cr.  Cases,  236.  See  Warrender  v. 
Warrender,  9  Bligh,  R.  122,  123,  127,  128,  129,  130,  139  to  143. 

~  Tovey  u.  Lindsay,  1  Dow,  R.  117,  131.  See  also  McCarthy  v.  Dc 
Caix,  1831,  cited  3  Hagj^.  Eccles.  R.  642,  note  ;  S.  C.  2  Russ.  &  Mylne, 
614,  620.  Lord  Eldon  on  this  occasion  is  reported  to  have  used  the  fol- 
lowing language.  "  Here  then  we  have  a  case,  in  which  both  parties 
were  domiciled  in  England,  and  then  the  husband  went  to  Scotland,  where 
it  was  said  he  had  a  domicil  by  reason  of  origin,  and  his  being  heir  of  entail 
of  an  estate  there,  and  instituted  a  suit  against  his  wife,  which  she  said  did 
not  affect  her  in  England  ;  and,  if  his  domicil  was  at  Durham,  the  answer 
would  be  sufficient,  though  the  rule  of  law  should  be  admitted,  that  the  do- 
micil of  the  wife  followed  that  of  the  husband.  But  if  the  jurisdiction  by 
reason  of  the  original  domicil  could  be  maintained,  it  would  be  attended 
with  the  most  important  consequences  to  the  law  of  marriage.  The  deci- 
sion in  the  second  case  appeared  rather  singular,  when  connected  with  the 
decision  in  the  first.  They"  stated,  as  a  main  ground  of  the  judgment  in 
the  second  cause,  that  the  respondent  was  confessedly  domiciled  ix\  Scot- 
land, and  that  therefore  they  had  jurisdiction,  which  appeared  to  imply  a 
doubt,  whether  they  had  jurisdiction  in  the  first  cause.  If  the  first  cause 
could  be  supported,  there  was  no  occasion  for  the  second.  But,  suppose 
the  respondent  were  domiciled  in  Scotland  at  the  time  of  the  alleged  acts 
of  adultery  there,  the  question  still  remained,  whether  in  1810  he  could  in- 
stitute a  suit  against  her  with  effect,  unless  she  had  changed  her  forum 
likewise,  merely  upon  the  ground  of  the  fiction,  which  had  been  stated. 
This  was  a  question  of  the  very  highest  importance."  Lord  Brougham, 
in  delivering  his  own  judgment  in  McCarthy  v.  De  Caix,  2  Russ.  »& 
Mylne,  614,  620,  said  ;  "  I  find  from  the  note  of  what  fell  from  Lord  El- 
don on  the  present  appeal,  that  his  Lordship  labored  under  considerable 
misapprehension  as  to  the  facts  in  Lolley's  case.  He  is  represented,  as 
saying,  he  will  not  admit,  that  it  is  the  settled  law,  and  that  therefore  he 
27* 


318  CONFLICT    OF  LAWS.  [CH.  VIL 

suggested,  however,  that  Lord  Eldon  "was  not  prepared 
to  carry  the  doctrine  to  such  a  length ;  and  certainly 

will  not  decide,  whether  the  marriage  was  or  not  prematurely  determined 
by  the  Danish  divorce.     His  words  are,  '  1  will  not  without  other  assist- 
ance take  upon  myself  to  do  so.'     Now,  if  it  has  not  validly  and  by  the 
highest  authorities  in  Westminster  Hall  been  holden,  that  a  foreign  divorce 
cannot  dissolve  an  English  marriage,  then  nothing  whatever  has  been  es- 
tablished.    For  what  was  Lolley 's  case  1     It  was  a  case  the  strongest  pos- 
sible in  favor  of  the  doctrine  contended  for.     It  was  not  a  question  of  civil 
right  but  of  felony.    Lolley  had  bona  fide,  and  in  a  confident  belief,  founded 
on  the  authority  of  the  Scotch  lawyers,  that  the  Scotch  divorce  had  effect- 
ually dissolved  his  prior  English  marriage,  intermarried  in  England,  living 
his  first  wife.     He  was  tried  at  Lancaster  for  bigamy,  and  found  guilty  ; 
but  the  point  was  reserved,  and  was  afterwards  argued  before  all  the  most 
learned  judges  of  the  day,  who,  after  hearing  the  case  fully  and  thoroughly 
discussed,  first  at  Westminster  Hall,  and  then  at  Serjeant's  Inn,  gave  a 
clear  and  unanimous  opinion,  that  no  divorce  or  proceeding  in  the  nature  of 
divorce  in  any  foreign  country,  Scotland  included,  could  dissolve  a  mar- 
riage contracted  in  England  ;  and  they  sentenced  Lolley  to  seven  years' 
transportation.     And  he  was  accordingly  sent  to  the  hulks  for  one  or  two 
years;  though  in  mercy,  the  residue  of  his  sentence  was  ultimately  remit- 
ted.    I  take  leave  to  say,  he  ought  not  to  have  gone  to  the  hulks  at  all, 
because  he  had  acted  bona  fide,  though  this  did  not  prevent  his  conviction 
from  being  legal.     But  he  was  sent  notwithstanding,  as  if  to  show  clearly 
that  the  judges  were  confident  of  the  law  they  had  laid  down  ;  so  that, 
never  was  there  a  greater  mistake  than  to  suppose,  that  the  remission  ar- 
gued the  least  doubt  on  the  judges.     Even  if  the  punishment  had  been 
entirely  remitted,  the  remission  would  have  been  on  the  ground,  that  there 
had  been  no  criminal  intent,  though  that  had  been  done,  which  the  law 
declares  to  be  felony.     I  hold  it  to  be  perfectly  clear,  therefore,  that  Lol- 
ley's  case  stands  as  the  settled  law  of  Westminster  Hall  at  this  day.     It 
has  been  uniformly  recognized  since ;  and  in  particular  it  was  repeatedly 
made  the  subject  of  discussion,  before  Lord  Eldon  himself,  in  the  two  ap- 
peals of  Tovey  v.  Lindsay  in  the  House  of  Lords,  when  I  furnished  his 
Lordship  with  a  note  of  Lolley's  case,  which  he  followed  in  disposing  of 
both  those  appeals,  so  far  as  it  affected  them.     That  case  then  settled  two 
points  ;  first,  that  no  foreign  proceeding  in  the  nature  of  a  divorce  in  an 
ecclesiastical  court  could  effectually  dissolve  an  English  marriage  ;  and, 
secondly,  that  a  Scotch  divorce  is  not  such  a  proceeding  in  an  ecclesias- 
tical court,  as  to  bring  the  case  within  the  exception  in  the  Bigamy  Act, 
for  which  nothing  less  than  the  sentence  of  an  English  ecclesiastical  court 
is  sufficient."     See  also  2  Clarke  &  Finell.  R.  567  note,  and  Warrender 
r.  Warrender,  9Bligh,  R.  89,  121,  124,   127;  Id.  141,   142,  143;  post, 
^219  a. 


CH.  VII.]  FOREIGN   DIVORCES.  319 

there  was  room  in  that  case  for  a  distinction,  founded 
upon  the  fact,  that  neither  of  the  parties  at  the  time  of 
the  suit  for  the  divorce  in  Scotland  had  a  lond  fide  do- 
micil  there ;  but  that  they  both,  at  that  very  time  in 
fact  had  their  domicil  in  England,  where  the  marriage 
was  had/ 

§  219.  It  has  been  stated  by  another  learned  judge, 
in  a  very  recent  case,  that  Lolley's  case  turned  upon 
the  very  distinction,  in  point  of  jurisdiction,  between  a 
temporary  and  fugitive  residence  for  the  purpose  of  a 
divorce,  and  hond  fide  change  of  domicil  by  the  husband 
and  wife,  animo  remanendi.  And  upon  the  ground  of 
that  distinction,  in  a  case,  where  there  was  no  change 
of  domicil,  and  the  parties  were  not  at  any  time  hond 
fide  domiciled  in  Scotland,  he  declared  a  Scottish  di- 
vorce from  an  English  marriage  utterly  void.^  The 
language  of  his  opinion  is  so  important,  that  it  deserves 
to  be  quoted  at  large.  "  A  case,"  (says  he,)  '^in  which 
all  the  parties  are  domiciled  in  England,  and  resort  is 
had  to  Scotland  (with  which  neither  of  them  have  any 
connexion)  for  no  other  purpose,  than  to  obtain  a  divorce 
a  vinculo,  may  properly  be  decided  on  principles,  which 
would  not  altogether  apply  to  a  case  differently  circum- 
stanced ;  as,  where,  prior  to  the  cause  arising,  on  account 
of  which  a  divorce  was  sought,  the  parties  had  been 
hond  fide  domiciled  in  Scotland.  Unless  I  am  satisfied, 
that  every  view  of  this  question  had  been  taken,  the 
Court  cannot  from  the  case  referred  to  (Lolley's  case) 


1  Lolley's  Case,  1  Russ.  &  Ryan's  Cr.  Cases,  237;  S.  C.  2  Clarke  & 
Finell.  R.  567,  note. 

2  Dr.  Lushington  in  Conway  r.  Beazley,  3  Hagg.  Eccles.  R.  G39,  645, 
646,  647,  653. 


320  CONFLICT    OF   LAWS.  [CH.  VII. 

assume  it  to  have  been  established  as  a  universal  rule, 
that  a  marriage  had  in  England,  and  originally  valid  by 
the  law  of  England,  cannot,  under  any  possible  circum- 
stances, be  dissolved  by  the  decree  of  a  foreign  court. 
Before  I  could  give  my  assent  to  such  a  doctrine,  (not 
meaning  to  deny  that  it  may  be  true,)  I  must  have  a 
decision,  after  argument,  upon  such  a  case,  as  I  will 
now  suppose,  viz.  a  marriage  in  England,  the  parties 
resorting  to  a  foreign  country,  becoming  actually  bond 
fide  domiciled  in  that  country,  and  then  separated  by  a 
sentence  of  divorce  pronounced  by  the  competent  tribu- 
nabof  that  countr3^  I  am  not  aware,  that  that  point 
has  ever  been  distinctly  raised  ;  and  I  think,  I  may  say 
with  certainty,  that  it  has  never  received  any  express 
decision.  I  believe  the  course  of  decision  in  Scotland 
up  to  the  present  hour  has  been  to  consider,  that  the 
Scotch  Courts  have  a  right  to  entertain  jurisdiction 
with  respect  to  marriages  had  in  England,  after  the 
parties  have  been  residents  for  a  certain  period  in  Scot- 
land, though  that  period  had  been  infinitely  too  short  to 
constitute  what  we  should  call  a  legal  domicil ;  and 
that  those  courts  have  proceeded  in  such  cases  to  di- 
vorce a  vinculo.  It  is  obvious,  that  many  most  import- 
ant differences  may  arise  in  cases  of  this  description. 
Two  Scotch  persons,  married  in  England,  may  after- 
wards go  to  reside  in  Scotland.  Again ;  one  of  the 
contracting  parties  may  be  English,  and  the  other 
Scotch.  If  the  law  of  Scotland  continue  such,  as  their 
courts  have  hitherto  held  it  to  be,  and  if  the  decision  in 
Lolley's  case  be  of  universal  application,  the  issue  of 
the  second  marriage  may  be  legitimate  in  Scotland, 
and  illegitimate  in  England.  The  son  may  take  the 
real  estate  in  Scotland,  and  not  the  real  estate  in  Eng- 
land.    He  might  possibly  be  a  Scotch  Peer,  and  lose 


CH.  VII.]  FOREIGN   DIVORCES.  321 

his  English  title,  and  with  it  the  English  estates,  the 
only  support  of  his  Scotch  Peerage." ' 

§  220.  Independent  of  the  point  of  general  jurisdic- 
tion, founded  upon  the  flict  of  the  domicil  of  both  the 
parties,  or  at  least  of  the  party  defendant  in  the  suit 
for  a  divorce,  which  for  a  series  of  years  was  most 
elaborately  discussed,  and  remained  in  a  state  of  dis- 
tressing uncertainty,  as  well  as  to  the  effect  of  a  per- 
manent domicil,  as  to  that  of  a  temporary  domicil,  to 
found  a  sentence  of  divorce,  the  Scottish  Courts  have 
been  called  on  to  decide  other  questions  of  a  broader 
character,  and  involving  more  extensive  consequences. 
In  the  first  place,  the  general  question  already  hinted 
at,  whether  an  English  marriage  between  English  sub- 
jects, being  indissoluble  by  the  law  of  England,  can 
under  any  possible  circumstances  be  dissolved  by  a 
decree  of  divorce  in  Scotland.  In  the  next  place, 
whether  a  marriage  in  Scotland  by  English  subjects, 
domiciled  at  the  time  in  England,  is  dissoluble  under 
any  circumstances  by  a  decree  of  divorce  in  Scotland. 
In  the  next  place,  whether,  in  case  a  marriage  in  Eng- 
land, it  will  make  any  difference,  that  the  parties  are 
both  Scotch  persons,  domiciled  in  Scotland,  or  after- 
wards become  lond  fide  and  permanently  domiciled 
there. 

§  221.  Upon  these  questions  the  highest  tribunals 
in  Scotland  have  come  to  the  following  conclusions. 
First,  that  a  marriage  between  English  subjects  in 
England,  and  indissoluble  there,  may  be  lawfully  dis- 
solved by  the  proper  Scottish  Court  for  a  cause  of 
divorce,  good  by  the  law  of  Scotland,  when  the  parties 
are  within  the  process  and  jurisdiction  of  the  court ; 


1  Conway  v.  Beazley,  3  Hagg.  Eccles.  R.  645,  646,  647,  653. 


322  CONFLICT   OF   LAWS.  [CH.  VIL 

or,  in  other  words,  that  it  is  not  a  valid  defence  against 
an  action  of  divorce  in  Scotland  for  adultery  com- 
mitted there,  that  the  marriage  was  celebrated  in  Eng- 
land. Secondly,  that  a  Scotch  marriage  by  persons, 
domiciled  at  the  time  in  England,  is  dissoluble  in  like 
manner  by  the  proper  Scottish  Court;  or  in  other 
words,  that  it  is  not  a  valid  defence,  that  the  parties 
were  domiciled  in  England,  when  the  marriage  was 
celebrated  in  Scotland.  Thirdly,  that  in  case  of  a 
marriage  in  England,  it  will  make  no  difference,  that 
the  parties  are  Scottish  persons,  domiciled  in  Scotland, 
or  %re  afterwards  lond  fide  and  permanently  domiciled 
there ;  or,  in  other  words,  that  it  is  not  a  valid  defence, 
that  the  parties  are  Scottish  persons,  happening  to  be 
in  England  when  their  marriage  was  celebrated,  but 
who  afterwards  returned  to  Scotland,  and  cohabited, 
and  continued  domiciled  there.  The  result  of  these 
opinions  (the  unanimous  opinions  of  the  judges  of  the 
Court  of  Session)  is,  that  the  mere  fact  of  the  marriage 
having  been  celebrated  in  England,  whether  it  is  be- 
tween English  parties  or  Scottish  parties,  or  both,  is  not 
per  se  a  defence  against  a  suit  of  divorce  for  adultery 
committed  there.H 

§  222.  The  reasoning,  by  which  these  opinions  are 
maintained,  as  it  may  be  gathered  from  comparing  the 
arguments  of  the  different  judges,  is  to  the  following 
effect.  The  relation  of  husband  and  wife,  wherever  it 
may  have  been  originally  constituted,  and  the  parties 
thereto  been  connected,  is  entitled  to  the  same  protec- 
tion and  redress  from  the  Courts  of  justice  in  Scotland, 
as   to   wrongs    committed  in   Scotland,   which   belong 


^  Cases  of  Edmonstone,  Levetl,  and   Forbes,  Fergusson  on  Marr.  and 
Div.  3S3,  392,  393  ;  Id.  114,  115. 


CH.  VII.]  FOREIGN   DIVORCES.  323 

of  right  to  that  relation  by  the  law  of  Scotland.'  By 
marrying  in  England  the  parties  do  not  become  bound 
to  reside  forever  in  England,  or  to  treat  one  another  in 
every  other  country,  where  they  may  afterwards  reside, 
according  to  the  law  of  England.  Their  obligation  is 
to  fulfil  the  duties  of  husband  and  wife  to  each  other  in 
every  country,  to  which  they  may  be  called  in  the 
course  of  Providence ;  and  they  neither  promise,  nor 
have  they  power  to  engage,  that  they  will  carry 
the  law  of  England  along  with  them  to  regulate,  what 
the  duties  and  powers  shall  be,  which  they  shall  fulfil 
and  exercise,  or  the  redress  which  the  violation  of  those 
duties,  or  abuse  of  those  powers,  may  entitle  them  to 
in  all  other  countries.  All  these  functions  belong  to 
the  law  of  the  country  where  they  may  eventually 
reside,  and  to  which  they  unquestionably  contract  the 
duties  of  obedience  and  subjection,  whenever  they  enter 
its  territories.  Even,  if  it  had  been  the  will  of  the 
parties  by  any  stipulation,  however  express,  to  make 
the  Lex  loci  the  law  of  their  marriage,  it  would  derive 
no  force  from  that  circumstance.  An  action  of  divorce 
could  not  be  dismissed,  because  the  parties,  when  inter- 
marrying, had  in  the  most  formal  ma::mer  renounced 
the  benefit  of  divorce,  and  had  become  bound,  that 
their  marriage  should  be  indissoluble.  It  would  be  no 
objection  to  a  divorce  at  the  instance  of  a  Roman 
Catholic,  that  his  marriage  was  to  him  a  sacrament, 
and,  therefore,  by  its  own  nature  indissoluble.  These 
are  all  facta  privaionun,  and  cannot  impede  or  embar- 
rass the  steady,  uniform  course  of  the  fus  piihlicum, 
which  with  regard  to  the  rights  and  obligations  of  indi- 
viduals, affected  by  the  three  great  domestic  relations, 

1  Fergusson  on  Marr.  and  Divorce,  358. 


324  CONFLICT    OF   LAWS.  [CH.  VII. 

enacts  them  from  motives  of  political  expediency  and 
public  morality  ;  and  in  no  wise  confers  them  as  private 
benefits,  resulting  from  agreements  concerning  meiim  et 
ilium,  which  are  capable  of  being  modified  and  re- 
nounced at  pleasure.' 

§  223.  If  this  supposed  obligation  of  indissolubility, 
resulting  from  contract,  can  derive  no  force  from  the 
will  of  the  parties,  it  cannot  derive  any  from  the  dic- 
tates of  the  municipal  law,  where  the  relation  of  mar- 
riage originated,  so  as  to  give  it  efficacy  ultra  territo- 
riiim;  for  the  general  rule  is;  Extra-territorium  jus 
dicenti  impune  non  paretur?  In  the  fulfilment  of  ordinary 
contracts,  as  to  meum  et  timm,  the  Lex  loci  contractus 
forms  an  implied  condition  of  the  contract,  and  is  ac- 
cordingly adopted,  as  furnishing  the  means  of  constru- 
ing it  aright.  But  this  is  merely  a  proceeding  in  execu- 
tion of  the  will  of  the  parties,  and  not  in  the  least  a 
recognition  of  the  authority  of  a  foreign  law.  The 
case  is,  therefore,  quite  different,  where  the  will  of  the 
parties  only  constitutes,  and  does  not  modify  the  rela- 
tion or  its  rights ;  and  where  of  course  the  municipal 
law,  deriving  nothing  from  stipulation  or  agreement,  is 
merely  the  positive  institution  of  the  sovereign,  and 
cannot  direct  the  decisions  of  foreign  courts,  or  the  cir- 
cumstances occurring  within  their  own  jurisdiction. 
Matrimonial  rights  and  obligations,  so  far  as  they  are 
juris  gentium,  admit  of  no  modification  by  the  will  of 
parties ;  and  foreign  Courts  are,  therefore,  in  nowise 
called  upon  to  inquire  after  that  will,  or  after  any 
municipal  law,  to  which  it  may  correspond.^ 


1  Fergusson  on  Marr.  and  Divorce,  359,  360  ;  Id.  398,  399,  402. 

2  Ante,  §  8  ;  Dig.  Lib.  2,  tit.  1,  1.  20. 

3  Fergusson  on  Marr.  and  Divorce,  360,  361,  402,  410,  412,  414. 


CH.  VII.]  FOREIGN  DIVORCES.  325 

§  224.  Foreigners,  equally  with  natives,  while  resi- 
dents, are  subject  to  the  law  here,  and  of  course  are 
under  the  protection  of  the  law.  The  relations  in 
which  they  stand  towards  one  another,  and  which  have 
been  duly  constituted,  before  they  came  here,  if  they 
are  relations  recognized  by  all  civilized  nations,  must 
be  observed  ;  and  the  obligations  created  by  them  must 
be  fulfilled  agreeably  to  the  dictates  of  the  law  of  Scot- 
land. If  the  law  refused  to  apply  its  rules  to  the  rela- 
tion of  husband  and  wife,  parent  and  child,  master  and 
servant,  among  foreigners  in  this  country,  Scotland 
could  not  be  deemed  a  civilized  country ;  as  thereby  it 
would  permit  a  numerous  description  of  persons  to 
traverse  it,  and  violate  with  utter  impunity  all  the  obli- 
gations on  which  the  principal  comforts  of  human  life 
depend.  If  it  assumed  jurisdiction,  but  applied  not  its 
own  rules,  but  the  rules  of  the  law  of  a  foreign  country, 
the  supremacy  of  the  law  of  Scotland  within  its  own 
territories  would  be  compromised  ;  its  arrangements  for 
domestic  comfort  would  be  violated,  confounded,  and 
perplexed ;  and  the  powers  of  foreign  Courts,  unknown 
to  it's  law  and  constitution,  would  be  usurped  and  exer- 
cised.^ In  every  country  the  laws  relative  to  divorce 
are  considered  of  the  utmost  importance,  as  positive 
laws  affecting  the  domestic  interests  of  society  ;  and  in 
some  places  they  are  treated  as  of  divine  authority.^ 
A  party  domiciled  here  cannot  be  permitted  to  import 
into  this  country  a  law  peculiar  to  his  own  case,  and 
which  is  in  opposition  to  those  great  and  important 
public  laws,  which  are  held  to  be  connected  with  the 
best  interests  of  society.^ 

1  Fergusson  oa  Marr.  and  Divorce,  57,  58,  414,  418. 

2  Id.  398,  402,  403  ;  ante,  §  108,  210. 

3  Id.  399,400,  412,  418. 

CONFL.  28 


326  CONFLICT    OF   LAWS.  [CH.  VIL 

§  225.  That  there  is  great  force  in  this  reasoning, 
cannot  well  be  denied.  For  a  long  time  it  did  not 
obtain  any  positive  sanction  in  England ;  but,  as  far  as 
judicial  opinions  went,  they  were  against  the  doctrine, 
that  an  English  marriage  is  dissoluble  by  a  Scottish 
divorce.^  The  reasoning,  by  which  this  latter  view  was 
sustained,  was  to  the  following  effect.  The  law  of  the 
place  where  the  marriage  is  celebrated,  furnishes  a  just 
rule  for  the  interpretation  of  its  obligations  and  rights, 
as  it  does  in  the  case  of  other  contracts  which  are  held 
obligatory  according  to  the  Lex  loci  contractus?  It  is 
not  just,  that  one  party  should  be  able  at  his  option  to 
dissolve  a  contract  by  a  law  different  from  that  under 
which  it  was  formed  and  by  which  the  other  party  un- 
derstood it  to  be  governed.  If  any  other  rule  than  the 
Lex  loci  contractus  is  adopted,  the  law  of  marriage,  on 
which  the  happiness  of  society  so  mainly  depends,  must 
be  completely  loose  and  unsettled  -,  ^  and  the  ma^rriage 
state,  whose  indissolubility  is  so  much  favored  by 
Christianity,  and  by  the  best  interests  of  society,  will 
become  subject  to  the  mere  will,  and  almost  to  the 
caprice  of  the  parties  as  to  its  duration.  The  courts  of 
the  nations  whose  laws  are  most  lax  upon  this  subject 
will  be  constantly  resorted  to  for  the  purpose  of  pro- 
curing divorces;  and  thus,  not  only  frauds  will  be 
encouraged,  but  the  common  cause  of  morality  and 
religion  be  seriously  injured,  and  conjugal  virtue  and 


1  LoUey's  Case,  1  Russ.  &  Ryan's  Cas.  p.  236  ;  Tovey  v.  Lindsay, 
1  Dow,  R.  124  ;  McCarthy  v.  De  Caix,  3  Hagg.  Eccles.  R.  642,  note  ; 
S.  C.  2  Russ.  &  Mylne,  620  ;  2  Kent,  Comm.  Lect.  27,  p.  116,  117,  3d 
edit. 

2  p'ergusson  on  Marr.  and  Divorce,  283,  284,  285,  311,  312,  313,  318, 
325,  335,  339. 

3  Id.  283,  298,  312. 


CH.  Vir.]  FOREIGN   DIVORCES.  327 

parental  affection  become  corrupted  and  debased.^ 
Thus,  a  dissatisfied  party  might  resort  to  one  foreign 
country,  where  incompatibility  of  temper  is  a  ground 
of  divorce.;  or  to  another,  which  admits  of  divorce 
upon  even  more  frivolous  pretences,  or  upon  the  mere 
consent  of  both,  or  even  of  one  of  the  parties. 

§  226.  In  this  manner  a  nation  may  find  its  own  in- 
habitants throwing  off  all  obedience  to  its  own  laws 
and  institutions,  and  subverting,  by  the  interposition 
of  a  foreign  tribunal,  its  own  fundamental  policy.  Nay, 
a  stronger  case  may  be  put  of  a  marriage,  deemed 
as  a  sacrament,  indissoluble  by  the  public  religion  of  a 
nation,  which  is  3^et  dissolved  at  the  will  of  a  foreign 
nation,  in  violation  of  the  highest  of  all  human  duties, 
a  perfect  obedience  to  the  Divine  law.  There  is  no 
solid  ground  upon  which  any  government  can  be  held 
to  yield  up  its  own  fundamental  laws  and  policy,  as  to 
its  own  subjects,  in  favor  of  the  laws  or  acts  of  other 
countries.  Parties  contracting  in  a  country  where 
marriage  is  indissoluble,  voluntarily  submit  to  the  ju- 
risdiction and  laws  of  that  country,  if  they  are  foreign- 
ers, domiciled  there.  If  they  are  natural  subjects,  they 
are  bound  by  the  laws  of  the  country  in  virtue  of  the 
general  duty  of  allegiance.  Why  then  should  England 
permit  her  subjects,  by  a 'foreign  domicil,  to  escape  from 
the  indissolubility  of  a  marriage  contracted  in  England, 
and  thus  permit  them  to  defeat  a  fundamental  policy  of 
the  realm  ?  ^  Such  is  a  summary  of  the  reasoning  on 
each  side  of  this  vexed  question. 


1  Fergusson  on  Marr.  &  Div.  103,  104,  283,  284,  318,  319, 353,  355,  356. 

2  Mr.  Chancellor  Kent  has  given  an  excellent  summary  of  the  reason- 
ing on  each  side  in  his  Commentaries  ;  2  Kent,  Comm.  Lect.  27,  p.  110 
top.  117,  3d  edit.  My  own  duty  required  me  to  follow  out  his  doctrine 
by  some  additional  sketches. 


328  CONFLICT    OF   LAWS.  [CH.  VIL 

§  226  a.  The  whole  subject,  however,  recently  came 
before  the  House  of  Lords  in  England,  upon  an  appeal 
from  the  Court  of  Session  in  Scotland,  in  which  the 
direct  question  w^as,  whether  it  was  competent  for  the 
Scottish  courts  to  decree  a  divorce  between  parties  do- 
miciled in  Scotland,  who  were  married  in  England. 
The  facts  of  the  case  in  substance  were  these.  A 
Scotchman  domiciled  in  Scotland  was  married  to  an 
Englishwoman  in  England ;  and,  by  their  marriage 
contract,  a  jointure  was  secured  to  her  in  his  Scottish 
estates.  After  their  marriage  they  went  to  Scotland, 
and  resided  there  a  short  time,  and  then  returned  to 
England.  They  afterwards  in  England  executed  arti- 
cles of  separation,  by  which  a  separate  maintenance  was 
secured  to  the  w^ife  during  her  separation.  Immediately 
afterwards  the  wife  went  abroad,  and  has  ever  since 
resided  abroad.  The  husband  continued  to  be  domi- 
ciled in  Scotland  ;  where  he  brought  a  suit  for  a  divorce 
against  his  wife,  founded  upon  the  charge  of  adultery. 
The  preliminary  question  presented  was,  whether,  even 
assuming  the  parties  to  be  domiciled  in  Scotland,  the 
suit  could  be  maintained  in  Scotland  for  a  divorce  from 
an  English  marriage,  which  was  by  the  law  of  England 
indissoluble.  The  Court  of  Session  affirmed  the  juris- 
diction to  decree  the  divorce  ;>nd  this  decree  was  upon 
the  appeal  confirmed  by  the  House  of  Lords.^ 

§  226  h.  Very  elpl2orate\  judgments  were  delivered 
by  Lord  Brougham  a*  \  Xtoi^i  Lyndhurst  upon  this  oc- 
casion. The  direct  po;T>^)d\cided  was,  that  the  Courts 
of  Scotland  had  by  the  lyan'.  of  Scotland  a  clear  juris- 

^!^ 


1  Warrender  v.  Warrender,  9  Bligh,  R.  89  ;  S.  C.  2  Clarke   &  Finell. 
R.  488. 


CH.  VII.]  FOREIGN   DIVORCES.  329 

diction  to  decree  a  divorce  in  such  a  case  between  par- 
ties actually  domiciled  in  Scotland,  notwithstanding  the 
marriage  was  contracted  in  England,  and  that  the 
House  of  Lords,  sitting  as  a  Court  of  Appeal  in  a  case, 
coming  from  Scotland,  was  bound  to  administer  the 
law  of  Scotland.  The  Court  did  not,  however,  decide, 
what  effect  that  divorce  would  have,  or  ought  to  have 
in  England,  if  it  should  be  brought  in  question  in  an 
English  court  of  justice.^  Lolley's  case  was  a  good 
deal  discussed ;  and  without  being  overturned  as  to  its 
professed  general  doctrine,  must  be  now  deemed  to  be 
greatly  shaken,  except  as  a  decision  upon  its  own  pe- 
culiar circumstances. 

226  c.  But  although  the  general  question  as  to  the 
indissolubility  of  an  English  marriage,  so  far  at  least, 
as  it  could  arise  in  England  upon  a  litigation  there, 
was  left  undecided,  Lord  Brougham,  in  delivering  his 
judgment,  went  into  an  elaborate  examination  of  the 
general  principles  of  international  law  upon  this  sub- 
ject. It  cannot,  therefore,  but  be  acceptable  to  the 
learned  reader  to  have  in  the  subjoined  note  a  summary 
of  the  reasoning,  by  which  this  distinguished  judge 
maintained  the  opinion,  that  upon  principles  of  public 
law,  a  divorce  from  an  English  marriage,  made  by  a 
competent  Court  of  a  foreign  country  where  the  par- 
ties are  domiciled,  ought  to  be  deemed  in  England  to 
dissolve  the  marriage,  and  to  confer  upon  the  parties 
all  the  rights  arising  from  a  lawful  dissolution.^ 


1  Warrender  v.  Warrender,  9  Bligh,  R.  89  ;  S.  C.  2  Clarke  &  Finell. 
R.  488. 

2  His  Lordship's  reasoning  was  in  substance  to  the  following  effect.  — 
"The  general  principle  is  denied  by  no  one,  that  the  lex  loci  is  to  be  the 
governing  rule  in  deciding  upon  the  validity  or  invalidity  of  all  personal 
contracts.     This  is  sometimes  expressed,  and  I  take  leave  to  say  inaccU' 

28* 


330  CONFLICT    OF   LAWS.  [CH.  VII. 

§  227.  If  in  any  nation  the  doctrine  shall  ever  he 
established,  in  regard  to  marriages,  that  the  law  of  the 


rately  expressed,  by  saying,  that  there  is  a  cornitas  shown  by  the  tribu- 
nals of  one  country  towards  the  laws  of  the  other  country.  Such  a  thing 
as  comitas  or  courtesy  may  be  said  to  exist  in  certain  cases,  as  where  the 
French  Courts  inquire,  how  our  law  would  deal  with  a  Frenchman  in 
similar  or  parallel  circumstances,  and  upon  proof  of  it,  so  deal  with  an 
Englishman  in  those  circumstances.  This  is  truly  a  comitas,  and  can  be 
explained  upon  no  other  ground;  and  I  must  be  permitted  to  say,  with 
all  respect  for  the  usage,  it  is  not  easily  reconcilable  to  any  sound  reason. 
But  when  the  Courts  of  one  country  consider  the  laws  of  another,  in 
which  any  contract  has  been  made,  or  alleged  to  have  been  made,  in  con- 
struing its  meaning,  or  ascertaining  its  existence,  they  can  hardly  be  said 
to  act  from  courtesy,  ex  comitate,  for  it  is  of  the  essence  of  the  subject- 
matter  to  ascertain 'the  meaning  of  the  parties,  and  that  they  did  solemnly 
bind  themselves ;  and  it  is  clear,  that  you  must  presume  them  to  have 
intended  what  the  law  of  the  country  sanctions  or  supposes  ;  and  equally 
clear,  that  their  adopting  the  forms  and  solemnities  which  that  law  pre- 
scribes, shows  their  intention  to  bind  themselves,  nay  more,  it  is  the  only 
safe  criterion  of  their  having  entertained  such  an  intention.  Therefore, 
the  courts  of  the  country,  where  the  question  arises,  resort  to  the  law  of 
the  country,  where  the  contract  was  made,  not  ex  comitate,  but  ex  debito 
justitiffi  ;  and  in  order  to  explicate  their  own  jurisdiction  by  discovering 
that  which  they  are  in  quest  of,  and  which  alone  they  are  in  quest  of,  the 
meaning  and  intent  of  the  parties.  But  whatever  may  be  the  foundation 
of  the  principle,  its  acceptance  in  all  systems  of  jurisprudence  is  unques- 
tionable. Thus,  a  marriage,  good  by  the  laws  of  one  country  is  held  good 
in  all  others,  where  the  question  of  its  validity  may  arise.  For  why  1 
The  question  always  must  be.  Did  the  parties  intend  to  contract  marriage? 
And  if  they  did,  what  in  the  place,  they  were  in,  is  deemed  a  marriage, 
they  cannot  reasonably,  or  sensibly,  or  safely,  be  considered  otherwise 
than  as  intending  a  marriage  contract.  The  laws  of  each  nation  lay  down 
the  forms  and  solemnities,  a  compliance  with  which  shall  be  deemed  the  only 
criterion  of  the  intention  to  enter  into  the  contract.  If  those  laws  annex 
certain  qualifications  to  parties  circumstanced  in  a  particular  way,  or  if  they 
impose  certain  conditions  precedent  on  certain  parties,  this  falls  exactly 
within  the  same  rule ;  for  the  presumption  of  law  is  in  the  one  case,  that 
the  parlies  are  absolutely  incapable  of  the  consent  required  to  make  the  con- 
tract, and  in  the  other  case,  that  they  are  incapable,  until  they  have  com- 
plied with  the  conditions  imposed/  I  shall  only  stop  here  to  remark,  that 
the  English  jurisprudence,  while  it  adopts  this  principle  in  words,  would 
not  perhaps,  in  certain  cases,  which  may  be  put,  be  found  very  willing  to 
act  upon  it  throughout.     Thus,  we  shonld  expect  that  the  Spanish  and  Por- 


CH.  VII.]  .    FOREIGN   DIVORCES.  331 

place  of  its  actual  celebration  shall  prevail,  not  only  as 
to  its  original  validity,  but  also  as  to  its  mode  of  disso- 


tuguese  Courts  would  hold  an  English  marriage  avoidable  between  uncle 
and  niece,  or  brother  and  'sister-in-law,  though  solemnized  under  papal 
dispensation,  because  it  would  clearly  be  avoidable  in  this  country.  But  I 
strongly  incline  to  think  that  our  courts  would  refuse  to  sanction,  and 
would  avoid  by  sentence  a  marriage  between  those  relatives  contracted  in 
the  Peninsula,  under  dispensation,  although  beyond  all  doubt  such  a  mar- 
riage would  there  be  valid  by  the  lex  loci  contractus,  and  incapable  of 
being  set  aside  by  any  proceedings  in  that  country.  But  the  rule  extends, 
I  apprehend,  no  further  than  to  the  ascertaining  of  the  validity  of  the  con- 
tract, and  the  meaning  of  the  parties,  that  is,  the  existence  of  the  contract 
and  its  construction.  If,  indeed,  there  go  two  things  under  one  and  the 
same  name  in  different  countries  —  if  that  which  is  called  marriage  is  of  a 
different  nature  in  each  —  there  may  be  some  room  for  holding,  that  we 
are  to  consider  the  thing  to  which  the  parlies  have  bound  themselves,  ac- 
cording to  its  legal  acceptation  in  the  country,  where  the  obligation  was 
contracted.  But  marriage  is  one  and  the  same  thing  substantially,  all  the 
Christian  world  over.  Our  whole  law  of  marriage  assumes  this  ;  and  it  is 
important  to  observe,  that  we  regard  it  as  a  wholly  different  thing,  a  dif- 
ferent status  from  Turkish  or  other  marriages  among  infidel  nations  ; 
because  we  clearly  never  should  recognize  the  plurality  of  wives,  and  con- 
sequent validity  of  second  marriages,  standing  the  first,  which  second 
marriages  the  laws  of  those  countries  authorize  and  validate.  This  can- " 
not  be  put  upon  any  rational  ground,  except  our  holding  the  infidel  mar- 
riage to  be  something  different  from  the  Christian,  and  our  also  holding 
Christian  marriage  to  be  the  same  everywhere.  Therefore,  all  that  the 
Courts  of  one  country  have  to  determine  is,  whether  or  not  the  thing 
called  marriage,  that  known  relation  of  persons,  that  relation  which  those 
Courts  are  acquainted  with,  and  know  how  to  deal  with,  has  been  validly 
contracted  in  the  other  country,  where  the  parties  professed  to  bind  them- 
selves. If  the  question  is  answered  in  the  affirmative,  a  marriage  has 
been  had  ;  the  relation  has  been  constituted  ;  and  those  Courts  will  deal 
with  the  rights  of  the  parties  under  it,  according  to  the  principles  of  the 
municipal  law,  which  they  administer.  But  it  is  said,  that  what  is  called 
the  essence  of  the  contract  must  also  be  judged  of  according  to  the  lex 
loci ;  and  as  this  is  somewhat  vague,  and  for  its  vagueness,  a  somewhat 
suspicious  proposition,  it  is  rendered  more  certain  by  adding,  that  dissolu- 
bility or  indissolubility  is  of  the  essence  of  the  contract.  Now  I  take  this 
to  be  really  petitio  principii.  It  is  putting  the  very  question  under  discus- 
sion into  another  form  of  words,  and  giving  the  answer  in  one  way.  There 
are  many  other  things  which  may  just  as  well  be  reckoned  of  the  essence 
as  this.     If  it  is  said,  that  the  parties  marrying  in  England  must  be  taken 


332  CONFLICT    OF   LAWS.  [CH.  VIL 

lution,  some  other  interesting  questions  will  still  remain 
for  decision.     In  the  first  place,  will  any  foreign  Court 


all  the  world  over  to  have  bound  themselves  to  live,  until  death,  or  an 
Act  of  Parliannent  them  'do  part;'  why  shall  it  not  also  be  said,  that 
they  have  bound  themselves  to  live  together  on  such  terms,  and  with  such 
mutual  personal  rights  and  duties  as  the  English  law  recognizes  and 
enforces  1  Those  rights  and  duties  are  just  as  much  of  the  essence  as 
dissolubility  or  indissolubility;  and  yet  all  admit,  all  must  admit,  that  per- 
sons married  in  England  and  settled  in  Scotland  will  be  entitled  only  to 
the  personal  rights,  which  the  Scotch  law  sanctions,  and  will  only  be  liable 
to  perform  the  duties  which  the  Scotch  law  imposes.  Indeed,  if  we  are 
to  regard  the  nature  of  the  contract  in  this  respect  as  defined  by  the  lex 
loci,  it  is  difficult  to  see,  why  we  may  not  import  from  Turkey  into  Eng- 
land a  marriage  of  such  a  nature,  as  that  it  is  capable  of  being  followed  by 
and  subsisting  with  another,  polygamy  being  there  of  the  essence  of  the 
contract.  The  fallacy  of  the  argument,  '  that  indissolubility  is  of  the 
essence,'  appears  plainly  to  be  this  ;  it  confounds  incidents  with  essence  ; 
it  makes  the  rights  under  a  contract,  or  flowing  from  and  arising  out  of  it, 
parcel  of  the  contract ;  it  makes  the  mode,  in  which  judicatures  deal  with 
those  rights,  and  with  the  contract  itself,  part  of  the  contract ;  instead  of 
considering,  as  in  all  soundness  of  principle  we  ought,  that  the  contract 
and  all  its  incidents,  and  the  rights  of  the  parties  to  it,  and  the  wrongs 
committed  by  them  respecting  it,  must  be  dealt  with  by  the  Courts  of  the 
'  country  where  the  parties  reside,  and  where  the  contract  is  to  be  carried 
into  execution.  But  at  all  events  this  is  clear,  and  it  seems  to  be  decisive 
of  the  point,  that  if  on  some  such  ground  as  this  a  marriage  indissoluble 
by  the  lex  loci  is  held  to  be  indissoluble  everywhere,  so  conversely,  a  mar- 
riage dissoluble  by  ihe  lex  loci  must  be  held  everywhere  dissoluble.  The 
one  proposition  is  in  truth  identical  with  the  other.  Now,  it  would  follow 
from  hence,  or  rather  it  is  the  same  proposition,  that  a  marriage  contracted 
in  Scotland,  where  it  is  dissoluble  by  reason  of  adultery,  or  of  non-adhe- 
rence, is  dissoluble  in  England,  and  that  at  the  suit  of  either  party. 
Therefore,  a  wife  married  in  Scotland  might  sue  her  husband  in  our 
courts  for  adultery,  or  for  absenting  himself  four  years,  and  ought  to  ob- 
tain a  divorce  a  vinculo  matrimonii.  Nay,  if  the  marriage  had  been 
solemnized  in  Prussia,  either  party  might  obtain  a  divorce  on  the  ground 
of  incompatibility  of  temper;  and  if  it  had  been  solemnized  in  France 
during  the  earlier  period  of  the  revolution,  the  mere  consent  of  the  parties 
ought  to  suffice  for  dissolving  it  here.  Indeed,  another  consequence 
would  follow  from  this  doctrine  of  confounding  with  the  nature  of  the 
contract  that,  which  is  only  a  matter  touching  the  jurisdiction  of  the 
courts,  and  their  power  of  dealing  with  the  rights  and  duties  of  the  parties 
to  it.     If  there  were  a  country,  in  which  marriage  could  be  dissolved 


CH.  VII.]  FOREIGN   DIVORCES.  333 

have  a  right  to  entertain  jurisdiction  to  decree  a  divorce 
for  causes  justified  by  the  law  of  the  matrimonial  do- 


without  any  judicial  proceeding  at  all,  merely  by  the  parties  agreeing  in 
pais  to  separate,  every  other  country  ought  to  sanction  a  separation  had 
in  pais  there,  and  uphold  a  second  marriage  contracted  after  such  separa- 
tion. It  may  safely  be  asserted,  that  so  absurd  a  proposition  never  could 
for  a  moment  be  entertained  ;  and  yet  it  is  not  like,  but  identical  with  the 
proposition  upon  which  the  main  body  of  the  appellant's  argument  rests, 
that  the  question  of  indissoluble  or  dissoluble  must  be  decided  in  all  cases 
by  the  lex  loci.  Hitherto  we  have  been  considering  the  contract  as  to  its 
nature  and  solemnities,  and  examining  how  far,  being  English,  and  en- 
tered into  with  reference  only  to  England,  it  could  be  dissolved  by  a 
Scotch  sentence  of  divorce.  But  the  circumstances  of  parties  belonging 
to  one  country  marrying  in  another  (which  is  the  case  at  bar)  presents  the 
question  in  another  light.  In  personal  contracts  much  depends  upon  the 
parties  having  regard  to  the  country,  where  it  is  to  be  acted  under,  and  to 
receive  its  execution  —  upon  their  making  the  contract,  with  a  view  to 
its  execution  in  that  country.  The  marriage  contract  is  emphatically  one, 
which  parties  make  with  an  immediate  view  to  the  usual  place  of  their 
residence.  An  Englishman  marrying  in  Turkey  contracts  a  marriage  of 
an  English  kind,  that  is,  excluding  plurality  of  wives,  because  he  is  an 
Englishman,  and  only  residing  in  Turkey  and  under  the  Mahometan  law 
accidentally  and  temporarily,  and  because  he  marries  with  a  view  of 
being  a  married  man  and  having  a  wife  in  England,  and  for  English  pur- 
poses ;  consequently  the  incidents  and  effects,  nay,  the  very  nature  and 
essence  (to  use  the  language  of  the  appellant's  argument)  must  be  as- 
certained by  the  English,  and  not  by  the  Turkish  law.  So  of  an  Eng- 
lishman marrying  in  Prussia,  where  incompatible  temper,  that  is,  disa- 
greement, may  dissolve  the  contract.  As  he  marries  with  a  view  to 
English  domicil,  his  contract  will  be  judged  by  English  law,  and  he  can- 
not apply  for  a  divorce  here  upon  the  ground  of  incompatible  tempers. 
In  like  manner  a  domiciled  Scotchman  may  be  said  to  contract  not  an 
English,  but  a  Scotch  marriage,  though  the  consent  wherein  it  consists 
may  be  testified  by  English  solemnities.  The  Scotch  parties  looking  to 
residence  and  rights  in  Scotland,  may  be  held  to  regard  the  nature  and 
incidents  and  consequences  of  the  contract,  according  to  the  law  of  that 
country,  their  home  ;  a  connection  formed  for  cohabitation,  for  mutual 
comfort,  protection,  and  endearment,  appears  to  be  a  contract  having  a 
most  peculiar  reference  to  the  contemplated  residence  of  the  wedded 
pair ;  the  home,  where  they  are  to  fulfil  their  mutual  promises,  and  per- 
form those  duties  which  were  the  objects  of  the  union  ;  in  a  word,  their 
domicil  ;  the  place  so  beautifully  described  by  the  civilian  — '  Locus,  ubi 
quisque  larem  suum  posuit  sedemque  fortunarum  suarum,  unde  cum  pro- 


334  CONFLICT    OF   LAWS.  [CH.  VII. 

micil?     Will  the  like  right  exist  where  no  divorce  is 
grantable  by  the  Lex  loci  for  a  similar  cause  in  case  of 


ficiscilur  peregrinare  videtur  quo  cum  revertitur  redire  domum.'  It  cer- 
tainly may  well  be  urged,  both  with  a  view  to  the  general  question  of 
lex  loci,  and  especially  in  answering  the  argument  of  the  alleged  essen- 
tial quality  of  indissolubility,  that  the  parlies  to  a  contract  like  this  must 
be  held  emphaliGally  to  enter  into  it  with  a  reference  to  their  own  domi- 
cil  and  its  laws ;  that  the  contract  assumes,  as  it  were,  a  local  aspect,  but 
that,  at  any  rate,  if  we  infer  the  nature  of  any  mutual  obligation  from 
the  presumed  intentions  of  the  parties,  and  if  we  presume  those  intentions 
from  supposing,  that  the  parties  had  a  particular  system  of  laws  in  their 
eye,  (the  only  foundation  of  the  argument  for  the  appellant,)  there  is 
fully  more  reason  to  suppose  they  had  the  law  of  their  own  home  in  their 
view,  where  they  purposed  to  live,  than  the  law  of  the  stranger  under 
which  they  happened  for  the  moment  to  be.  Suppose  we  take  now  ano- 
ther, but  a  very  obvious  and  intelligible  view  of  the  subject,  and  regard 
the  divorce  not  as  a  remedy,  given  to  the  injured  party  by  freeing  him 
from  the  chain  that  binds  him  to  a  guilty  partner,  but  as  a  punishment 
inflicted  upon  crime,  for  the  purpose  of  preventing  its  repetition,  and  thus 
keeping  public  morals  pure.  The  language  of  the  Scotch  acts  plainly 
countenances  this  view  of  the  matter,  and  we  may  observe  how  strongly 
it  bears  upon  the  present  question.  No  one  can  doubt,  that  every  stale 
has  the  right  to  visit  offences  with  such  penalties  as  to  its  legislative  wis- 
dom shall  seem  meet.  At  one  time  adultery  was  punishable  capitally  in 
England  ;  it  is  so  in  certain  cases  still  by  the  letter  of  the  Scotch  law. 
Whoever  committed  it  must  have  suffered  that  punishment,  had  the  law 
been  enforced,  and  without  regard  to  the  marriage,  of  which  he  had  viola- 
ted the  duties,  having  been  contracted  abroad.  Indeed,  in  executing  such 
statutes,  no  one  ever  heard  of  a  question  being  raised  as  to  where  the 
contract  had  been  made.  Suppose,  again,  that  the  proposition  frequently 
made  in  modern  times  were  adopted,  and  adultery  were  declared  to  be  a 
misdemeanor,  could  any  one,  tried  for  it  either  here  or  in  Scotland,  set  up 
in  his  defence,  that  to  the  law  of  the  country  where  he  was  married,  there 
was  no  such  offence  known  ?  In  like  manner  if  a  disruption  of  the  mar- 
riage tie  is  the  punishment  denounced  against  the  adulterer  for  disregard- 
ing its  duties,  no  one  can  pretend,  that  the  tie  being  declared  indissoluble 
by  the  laws  of  the  country  where  it  was  knit,  could  afibrd  the  least  defence 
against  the  execution  of  the  law  declaring  its  dissolution  to  be  the  penalty 
of  the  crime.  Whoever  maintains,  that  the  Scotch  Courts  are  to  take 
cognizance  of  the  English  law  of  indissolubility,  when  called  upon  to 
inflict  the  penalty  of  divorce,  must  likewise  be  prepared  to  hold,  that,  in 
punishing  any  other  offence,  the  same  Courts  are  to  regard  the  laws  of 
the  State  where  the  culprit  was  born,  or  where   part  of  the   transaction 


CH.  VII.]  FOREIGN   DIVORCES.  335 

a  domestic  marriage  ?     For  instance,  could  a  Consistory 
Court  of  Eno;land  entertain  a  suit  for  a  divorce  a  vinculo 


passed  ;  that,  for  example,  a  forgery  being  committed  on  a  foreign  bill  of 
exchange,  the  punishment  awarded  by  the  foreign  law  is  to  regulate  the 
visitation  of  the  offence  under  the  law  of  Scotland.  It  may  safely  be 
asserted ,  that  no  instance  whatever  can  be  given  of  the  criminal  law  of  any 
country  being  made  to  bend  to  that  of  any  other  in  any  part  of  its  admi- 
nistration. When  the  Roman  citizen  carried  abroad  with  him  his  rights  of 
citizenship,  and  boasted  that  he  could  plead  in  all  the  Courts  of  the  world, 
*  Civis  Romanus  sum,'  his  boast  was  founded  not  on  any  legal  principle, 
but  upon  the  fact  that  his  barbarian  countrymen  had  overrun  the  world 
with  their  arms,  reduced  all  laws  to  silence,  and  annihilated  the  independ- 
ence of  foreign  legislatures.  Their  orators  regarded  this  very  plea  as  the 
badge  of  universal  slavery,  which  their  warriors  had  fixed  upon  mankind. 
But  if  any  foreigner  had  come  to  Rome,  and  committed  a  crime  punisha- 
ble with  loss  of  civil  rights,  he  would  in  vain  have  pleaded  in  bar  of  the 
capitis  diminutio,  that  citizenship  was  indelible  and  indestructible  in  the 
country  of  his  birth.  The  lex  loci  must  needs  govern  all  criminal  juris- 
diction, from  the  nature  of  the  thing,  and  the  purposes  of  that  jurisdic- 
tion. How  then  can  we  say,  that,  when  the  Scotch  law  pronounces 
the  dissolution  of  a  marriage  to  be  the  punishment  of  adultery,  the  Scotch 
Courts  can  be  justified  in  importing  an  exception  in  favor  of  those,  who 
had  contracted  an  Englisli  marriage  ;  an  exception  created  by  the  English 
law  and  to  the  Scotch  law  unknown  ?  But  it  may  be  said,  that  the  of- 
fence being  committed  abroad,  and  not  within  the  Scotch  territory,  pre- 
vents the  application  to  it  of  the  Scotch  criminal  law.  To  this  it  may, 
however,  be  answered,  that  where  a  person  has  his  domicil  in  a  given 
country,  the  laws  of  that  country  to  which  he  owes  allegiance,  may  visit 
even  criminally  offences  committed  by  him  out  of  its  territory.  Of  this 
we  have  many  instances  in  our  own  jurisprudence.  Murder  and  treason 
committed  by  Englishmen  abroad  are  triable  in  England  and  punishable 
here.  Nay,  by  the  bill,  which  I  introduced  in  1811,  and  which  is  con- 
stantly acted  upon,  British  subjects  are  liable  to  be  convicted  of  felony  for 
slave-trading  in  whatever  part  of  the  world  committed  by  them.  It  would 
no  doubt  be  going  far  to  hold  the  wife  criminally  answerable  to  the  law  of 
Scotland  in  respect  of  her  legal  domicil  being  Scotch.  But  we  are  here 
not  so  much  arguing  to  the  merits  of  this  case,  which  has  abundant  other 
ground  to  rest  upon,  as  to  the  general  principle  ;  and  at  any  rate  the  argu- 
ment would  apply  to  the  case  most  frequently  mooted,  of  English  married 
parties  living  temporarily  in  Scotland,  and  adultery  being  there  committed 
by  one  of  them.  To  such  a  state  of  facts  the  whole  argument  now  ad- 
duced is  applicable  in  its  full  force  ;  and  without  admitting  that  applica- 
tion, I  do  not  well  see  how  we  can  hold,  that  the  Scotch  legislature  ever 
possessed  that  supreme  power,  which  is  absolutely   essential  to  the  very 


336  CONFLICT    OF   LAWS.  [CH.  VIL 

for  the   cause  of  adultery  in   case   of  a    Scottish  mar- 
riage ?     Or  in  such  cases  is  the  remedy  to   be   exclu- 


nature  and  existence  of  a  legislature.  If  we  deny  this  application,  we 
truly  admit  that  the  Scottish  Parliament  had  no  right  to  punish  the  offence 
of  adultery  by  the  penalty  of  divorce.  Nay,  we  hold,  that  English  par- 
ties had  a  right  to  violate  the  Scotch  criminal  law  with  perfect  impunity 
in  one  essential  particular  ;  for,  suppose  no  other  penalty  had  been  pro- 
vided by  the  Scotch  law,  except  divorce,  all  English  offenders  against 
that  law  must  go  unpunished.  Nay,  worse  still,  all  Scotch  parties,  who 
choose  to  avoid  the  punishment,  had  only  to  marry  in  England,  and  then 
the  law,  the  criminal  law,  of  their  own  country  became  inoperative.  The 
gross  absurdity  of  this  strikes  me  as  bearing  directly  upon  the  argument, 
and  as  greater  than  that  of  any  consequences,  which  I  remember  to  have 
seen  deduced  from  almost  any  disputed  position.  It  may  further  be  re- 
marked, that  this  argument  applies  equally  to  the  case,  if  we  admit  that 
the  Scotch  divorce  is  invalid  out  of  Scotland,  and  consequently,  that  it 
stands  well  with  even  the  principles  of  Lolley's  case.  In  order  to  dispose 
of  the  present  question,  it  is  not  at  all  necessary  on  the  one  side  to  sup- 
port, or  on  the  other  to  impeach,  the  authority  of  Lolley's  case,  or  of  any 
other,  which  may  have  been  determined  in  England  upon  that  authority. 
This  ought  to  be  steadily  borne  in  mind.  The  resolution  in  Lolley's  case 
was,  that  an  English  marriage  could  not  be  dissolved  by  any  proceeding 
in  the  Courts  of  any  other  country,  for  English  purposes  ;  in  other  words, 
that  the  Courts  of  this  country  will  not  recognize  the  validity  of  the  Scotch 
divorce,  but  will  hold  the  divorced  wife  dowable  of  an  English  estate,  the 
divorced  husband  tenant  thereof  by  the  courtesy,  and  either  party  guilty 
of  felony  by  contracting  a  second  marriage  in  England.  Upon  the  force 
and  effect  of  such  a  divorce  in  Scotland,  and  for  Scotch  purposes,  the 
Judges  gave,  and  indeed  could  give  no  opinion  ;  and  as  there  would  be 
nothing  legally  impossible  in  a  marriage  being  good  in  one  country,  which 
was  prohibited  by  the  law  of  another  ;  so,  if  the  conflict  of  the  Scotch 
and  English  law  be  complete  and  irreconcilable,  there  is  nothing  legally 
impossible  in  a  divorce  being  valid  in  the  one  country,  which  the  Courts  of 
the  other  may  hold  to  be  a  nullity.  Lolley's  case,  therefore,  cannot  be 
held  to  decide  the  present,  perhaps  not  even  to  affect  it  in  principle.  In 
another  point  of  view  it  is  inapplicable  ;  for,  though  the  decision  was  not 
put  upon  any  special  circumstance,  yet  in  fairly  considering  its  application, 
we  cannot  lay  out  of  view,  that  the  parties  were  not  only  married,  but 
really  domiciled,  in  England,  and  had  resorted  to  Scotland  for  the  mani- 
fest purpose  of  obtaining  a  temporary  and  fictitious  domicil  there,  in  order 
to  give  the  Scotch  Courts  jurisdiction  over  them,  and  enable  them  to  dis- 
solve their  marriage  ;  whereas,  here,  the  domicil  of  the  parties  is  Scotch, 
and  the  proceeding  is  bona  fide  taken  by  the  husband  in  the  Courts  of  his 


CH.  vil]  foreign  divorces.  337 

sively  pursued  in  the  domestic  forum  of  the  marriage  ? 
Whoever  shall  diligently  consider  these  questions,  will 


own  country,  to  which  he  is  amenable,  and  ought  to  have  free  access,  and 
no  fraud  upon  the  law  of  any  other  country  is  practised  by  the  suit.  It 
must  be  added,  that,  in  LoUey's  case,  the  English  marriage  had  been  con- 
tracted by  English  parties,  without  any  view  to  the  execution  of  the  con- 
tract at  any  time  in  Scotland  ;  whereas  the  marriage  now  in  question  was 
had  by  a  Scotchman  and  a  woman,  whom  the  contract  made  Scotch,  and 
therefore  may  be  held  to  have  contemplated  an  execution  and  effects  in 
Scotland.  But  although  for  these  reasons,  the  support  of  my  opinion 
does  not  require,  that  I  should  dispute  the  law  in  Lolley's  case,  I  should 
not  be  dealing  fairly  with  this  important  question,  if  I  were  to  avoid 
touching  upon  that  subject ;  and  as  no  decision  of  this  House  has  ever 
adopted  that  rule,  or  assumed  its  principle  for  sound,  and  acted  upon  it,  I 
am  entitled  here  to  express  the  difficulty  which  I  feel  in  acceding  to  that 
doctrine  —  a  difficulty,  which  much  deliberation  and  frequent  discussion 
with  the  greatest  lawyers  of  the  age  —  I  might  say  both  of  this  and  of 
the  last  age  —  has  not  been  able  to  remove  from  my  mind.  If  no  decision 
had  ever  been  pronounced  in  this  country,  recognizing  the  validity  of  Scotch 
marriages  between  English  parties  going  to  Scotland  with  the  purpose  of 
escaping  from  the  authority  of  the  English  law,  I  should  have  felt  it  much 
easier  to  acquiesce  in  the  decision  of  which  I  am  speaking.  For  then  it 
might  have  been  said  consistently  enough,  that  whatever  may  be  the  Scotch 
marriage  law  among  its  own  subjects,  and  for  the  government  of  Scotch 
questions,  ours  is  in  an  irreconcilable  conflict  with  it,  and  we  cannot  permit 
the  positive  enactments  of  our  statute-book,  and  the  principles  of  our 
common  law,  to  be  violated  or  eluded  by  merely  crossing  a  river,  or  an 
ideal  boundary  line.  Nor  could  any  thing  have  been  more  obvious,  than 
the  consistency  of  those  who,  holding  that  no  unmarried  parties,  incapable 
of  marrying  here,  can,  in  fraud  of  our  law,  contract  a  valid  marriage  in 
Scotland,  by  going  there  for  an  hour,  should  also  hold  tlie  cognate  doc- 
trine, that  no  married  parties  can  dissolve  an  English  marriage,  indissolu- 
ble here,  by  repairing  thither  for  six  weeks.  But  upon  this  firm  ground, 
the  decision  of  all  the  English  Courts  have  long  since  prevented  us  from 
taking  our  stand.  They  have  held,  both  the  Consistorial  Judges  in  Comp- 
ton  V.  Bearcroft,  and  those  of  the  common  law  in  Ilderton  v.  Ilderton,  the 
doctrine  uniformly  recognized  in  all  subsequent  cases,  and  acted  upon 
daily  by  the  English  people,  that  a  Scotch  marriage,  contracted  by  Eng- 
lish parties  in  the  face  and  in  fraud  of  the  English  law,  is  valid  to  all  in- 
tents and  purposes,  and  carries  all  the  real  and  all  the  personal  rights  of 
an  English  marriage,  affecting  in  its  consequences,  land,  and  honors,  and 
duties,  and  privileges,  precisely  as  it  does  the  most  lawful  and  solemn  ma- 
trimonial contract,  entered  into  among  ourselves,  in  our  own  churches, 
CONFL.  29 


338  CONFLICT    OF    LAWS.  [CH.  VIL 

not  find  tliem  without  serious    embarrassment.     They 
are  incidentally  treated  in  the  Scottish  decisions  already 


according  to  our  ritual,  and  under  our  own  statutes.  It  is  quite  impossible 
after  this  to  say,  that  we  can  draw  the  line,  and  hold  a  foreign  law,  which 
we  acknowledge  all-powerful  for  making  the  binding  contract,  to  be  utterly 
impotent  to  dissolve  it.  Were  the  sentence  of  the  Scotch  Court  in  a 
declarator  of  marriage  to  be  given  in  evidence  here,  it  would  be  conclu- 
sive, that  the  parties  were  man  and  wife,  and  no  exception  could  betaken 
to  the  admissibility,  or  the  effect  of  the  foreign  evidence,  upon  the  ground 
of  the  parties  having  been  English,  and  repaired  to  Scotland  for  the  pur- 
pose of  escaping  the  provisions  of  the  English  law.  A  similar  sentence 
of  the  same  Court,  declaring  the  marriage  to  be  dissolved  by  the  same 
law  of  Scotland,  is  now  supposed  to  be  given  in  evidence  between  parties, 
who  had  married  in  England.  Can  it,  in  any  consistency  of  reason,  be 
objected  to  the  reception,  or  to  the  force  of  this  sentence,  that  the  contract 
had  been  made,  and  the  parties  had  resided  here?  In  what  other  con- 
tract of  a  nature  merely  personal  —  in  what  other  transaction  between 
men  —  is  such  a  rule  ever  applied  —  such  an  arbitrary  and  gratuitous  dis- 
tinction made  —  such  an  exception  raised  to  the  universal  position,  that  things 
are  to  be  dissolved  by  the  same  process,  whereby  they  are  bound  together  ; 
or  rather,  that  the  tie  is  to  be  loosened  by  reversing  the  operation  which  knit 
it,  but  reversing  the  operation  according  to  the  same  rules  1  What  gave 
force  to  the  ligament  ?  If  a  contract  for  sale  of  a  chattel  is  made,  or  an  obli- 
gation of  debt  is  incurred,  or  a  chattel  is  pledged  in  one  country,  the  sale 
may  be  annulled,  the  debt  released,  and  the  pledge  redeemed  by  the  law 
and  by  the  forms  of  another  country,  in  which  the  parties  happen  to  reside, 
and  in  whose  Courts  their  rights  and  obligations  come  in  question,  unless 
there  was  an  express  stipulation  in  the  contract  itself  against  such,  void- 
ance,  release,  or  redemption.  But  at  any  rate  this  is  certain,  that  if  the 
laws  of  one  country  and  its  Courts  recognize  and  give  effect  to  those  of 
another,  in  respect  of  the  constitution  of  any  contract,  they  must  give  the 
like  recognition  and  effect  to  those  same  foreign  laws,  when  they  declare  the 
same  kind  of  contract  dissolved.  Suppose  a  party  forbidden  to  purchase 
from  another  by  our  equity,  as  administered  in  the  Courts  of  this  country 
(and  we  have  some  restraints  upon  certain  parties,  which  come  very  near 
prohibition  ;)  and  suppose  a  sale  of  chattels  by  one  to  another  party, 
standing  in  this  relation  towards  each  otiier,  should  be  effected  in  Scot- 
land, and  that  our  Courts  here  should  (whether  right  or  wrong)  recognize 
such  a  rule,  because  the  Scotch  law  would  affirm  it  —  surely  it  would 
follow,  that  our  Courts  must  equally  recognize  a  rescission  of  the  contract 
of  sale  in  Scotland  by  any  act  which  the  Scotch  law  regards  as  valid  to 
rescind  it;  although  our  own  law  may  not  regard  it  as  sufficient.  Suppose 
a  question  to  arise  in  the  Courts  of  England  respecting  the  execution  of  a 


CH.  VII.]  FOREIGN   DIVORCES.  339 

alluded  to ;  and  the  reasoning  on  each  side  is  worthy 
of  an  exact  perusal.'     The  attempt  to  ingraft  foreign 


contract,  thus  made  in  this  country,  and  that  the  objection  of  its  invalidity 
were  waived  for  some  reason  :  if  the  party  resisting  its  execution  were  to 
produce  either  a  sentence  of  a  Scotch  Court,  declaring  it  rescinded  by  a 
Scotch  matter  done  in  pais,  or  were  merely  to  produce  evidence  of  the 
thing  so  done,  and  proof  of  its  amounting  by  the  Scotch  law  to  a  rescis- 
sion of  the  contract —  I  apprehend,  that  the  party,  relying  on  the  con- 
tract, could  never  be  heard  to  say,  'The  contract  is  English,  and  the 
Scotch  proceeding  is  impotent  to  dissolve  it.'  The  reply  would  be,  '  Our 
English  Courts  have  (whether  right  or  wrong)  recognized  the  validity  of 
a  Scotch  proceeding  to  complete  the  obligation,  and  can  no  longer  deny 
the  validity  of  a  similar  but  reverse  proceeding  to  dissolve  it  —  unum- 
quodque  dissolvitur  eodem  modo,  quo  colligatur.'  Suppose,  for  another 
example,  (which  is  the  case,)  that  the  law  of  this  country  precluded  an 
infant,  or  a  married  woman,  from  borrowing  money  in  any  way,  or  from 
binding  themselves  by  deed  ;  and  that  in  another  country  those  obligations 
could  be  validly  incurred  ;  it  is  probable,  that  our  law  and  our  Courts  would 
recognize  the  validity  of  such  foreign  obligations.  But  suppose  a  feme 
covert  had  executed  a  power,  and  conveyed  an  interest  under  it  to  another 
feme  covert  in  England,  could  it  be  endured,  that,  where  the  donee  of  the 
power  produced  a  release  under  seal  from  the  feme  covert  in  the  same 
foreign  country,  a  distinction  should  be  taken,  and  the  Court  here  should 
hold  that  party  incapable  of  releasing  the  obligation  1  Would  it  not  be 
said,  that  our  Courts,  having  decided  the  contract  of  a  feme  covert  to  be 
binding,  when  executed  abroad,  must,  by  parity  of  reason,  hold  the  dis- 
charge or  release  of  the  feme  covert  to  be  valid,  if  it  be  valid  in  the  same 
foreign  country  ?  Nor  can  any  attempt  succeed,  in  this  argument,  which 
rests  upon  distinctions  taken  between  marriage  and  other  contracts,  on  the 
ground,  that  its  effects  govern  the  enjoyment  of  real  rights  in  England, 
and  that  the  English  law  alone  can  regulate  the  rights  of  landed  property. 
For,  not  to  mention,  that  a  Scotch  marriage  between  English  parlies  gives 
English  honors  and  estates  to  its  issue,  which  would  have  been  bastard, 
had  the  parlies  married,  or  pretended  to  marry,  in  England  ;  all  personal 
obligations  may  in  their  consequences  affect  real  rights  in  England.  Nor 
does  a  Scotch  divorce,  by  depriving  a  widow  of  dower,  or  arrears  of  pin- 
money,  charged  on  English  property,  more  immediately  affect  real  estate 
here,  than  a  bond,  or  a  judgment  released  in  Scotland  according  to  Scotch 
forms,  discharges  real  estate  of  a  lien,  or  than  a  bond  executed,  or  indeed 
a  simple  contract  debt  incurred  in  Scotland,  eventually  and  consequentially 
charges  English  real  estate.     It  appears  to  me  quite  certain,  that  those, 

1  See  Fergusson  on  Marr.  and  Divorce,  Appx.  383  to  p.  422. 


340  CONFLICT    OF    LAWS.  [CH.  VIL 

remedial  justice  upon  domestic  institutions  has  always 
been  found  extremely  difficult ;  and  as  we  shall  here- 


who  decided  Lolley's  case,  'did  not  look  siifRciently  to  the  difficulty  of  fol- 
lowing out  the  principle  of  the  rule  which  they  laid  down.  At  first  sight, 
on  a  cursory  survey  of  the  question,  there  seems  no  impediment  in  the  way 
of  a  judge,  who  would  keep  the  English  marriage  contract  indissoluble  in 
Scotland,  and  yet  allow  a  Scotch  marriage  to  have  validity  in  England  ; 
for  it  does  not  immediately  appear,  how  the  dissolution  and  the  constitu- 
tion of  the  contract  should  come  in  conflict,  though  diametrically  opposite 
principles  are  applied  to  each.  But  only  mark,  how  that  conflict  arises, 
and  how,  in  fact  and  in  practice,  it  must  needs  arise  as  long  as  the  diver- 
sity of  the  rules  applied  is  maintained.  When  English  parties  are  di- 
vorced in  Scotland,  it  seems  easy  to  say,  '  We  give  no  validity  to  this  pro- 
ceeding in  England,  leaving  the  Scotch  law  to  deal  with  it  in  that  coun- 
try ;  and  with  its  awards  we  do  not  in  anywise  interfere.'  But  the  time 
speedily  arrives,  when  we  can  no  longer  refuse  to  interfere,  and  then  see 
the  inextricable  confusion  that  instantly  arises  and  involves  the  whole  sub- 
ject. The  English  parties  are  divorced — they  return  to  England,  and 
one  of  them  marries  again  ;  that  party  is  met  by  Lolley's  case,  and  treat- 
ed as  a  felon.  So  far  all  is  smooth.  But  what  if  the  second  marriage  is 
contracted  in  Scotland  ?  And  what  if  the  issue  of  that  marriage  claims 
an  English  real  estate  by  descent,  or  a  widow  demands  her  dower?  Lol- 
ley's case  will  no  longer  serve  the  purpose  of  deciding  the  rights  of  the 
parties  ;  for  Lolley's  case  is  confined  to  the  eflfects  of  the  Scotch  divorce 
in  England,  and  professes  not  to  touch,  as,  indeed,  they  who  decided  it 
had  no  authority  to  touch  the  validity  of  that  divorce  in  Scotland.  Then 
the  marriage  being  Scotch,  the  lex  loci  must  prevail  by  the  cases  of  Comp- 
ton  V.  Bearcroft,  and  Ilderton  v.  Ilderton.  All  its  consequences  to  the 
wife  and  issue  must  be  dealt  with  by  the  English  Courts,  and  the  same 
judge,  who,  sitting  under  a  commission  of  gaol  delivery,  has  in  the  morn- 
ing sent  Mr.  Lolley  to  the  hulks  for  felony,  because  he  remarried  in  Eng- 
land, and  the  divorce  was  insufficient  ;  sitting  at  Nisi  Prius  in  the  after- 
noon, must  give  the  issue  of  Mr.  Lolley's  second  marriage  an  estate  in 
Yorkshire,  because  she  remarried  in  Scotland,  and  must  give  it  on  the 
precise  ground  that  the  divorce  was  efTectual.  Thus  the  divorce  is  both 
valid  and  nugatory,  not  according  to  its  own  nature,  or  the  law  of  any  one 
state,  but  according  to  the  accident,  whether  a  transaction  which  follows 
upon  it,  and  docs  not  necessarily  occur  at  all,  chanced  to  take  place  in  one 
part  of  the  island  or  in  the  other ;  and  yet  the  felony  of  the  husband  depend- 
ed entirely  upon  his  not  having  been  divorced  validly  in  Scotland,  and  not 
at  all  upon  his  not  being  divorced  validly  in  England  ;  and  the  title  of  the 
wife's  issue  to  the  succession,  or  of  herself  to  dower,  depends  wholly 
upon  the  same  husband  having  been  validly  divorced  in  that  same  country 


CH.  VII.]  FOREIGN   DIVORCES.  341 

after  see,  has  led  to  the  conclusion,  that  the  safest  and 
best  rule    is   to    give   remedies   only   to   the    extent, 


of  Scotland.  Nor  will  it  avail  to  contend,  that  the  parties  marrying  in 
Scotland  after  a  Scotch  divorce  is  in  fraud  of  the  English  rule,  as  laid 
down  in  that  celebrated  case.  It  may  be  so  ;  but  it  is  not  more  in  fraud- 
um  legis  Anglicanae,  than  the  marriage  was  in  Compton  v.  Bearcroft, 
which  yet  has  been  held  good  in  all  our  Courts.  Neither  will  it  avail  to 
argue,  that  the  indissoluble  nature  of  the  English  marriage  prevents  those 
parties  from  marrying  again  in  Scotland,  as  well  as  in  England  ;  for  the  rule 
in  Lolley's  case  has  no  greater  force  in  disqualifying  parties  from  marrying 
in  Scotland,  where  that  is  not  the  rule  of  law,  than  the  English  Marriage 
Act  has  in  disqualifying  infants  from  marrying  without  banns  published, 
and  yet  these  may,  by  the  law  of  England,  go  and  marry  validly  in  Scot- 
land. Indeed,  if  there  be  any  purely  personal  disqualification  or  incapa- 
city caused  by  the  law,  and  which,  more  than  any  other,  may  be  said  to 
travel  about  with  the  party,  it  is  that,  which  the  law  raises  upon  a  natural 
status,  as  that  of  infancy,  and  fixes  on  those,  who  by  the  order  of  nature 
itself,  are  in  that  condition,  and  unable  to  shake  it  off,  or  by  an  hour  to 
accelerate  its  termination.  If,  in  a  manner  confessedly  not  clear,  and  very 
far  from  being  unincumbered  with  doubt  and  difficulty,  we  find  that  mani- 
fest and  serious  inconvenience  is  sure  to  result  from  one  view,  and  very 
little  in  comparison  from  adopting  the  opposite  course,  nothing  can  be  a 
stronger  reason  for  taking  the  latter.  Now  surely  it  strikes  every  one, 
that  the  greatest  hardships  must  occur  to  parties,  the  greatest  embarrass- 
ment to  their  rights,  and  the  utmost  inconvenience  to  the  Courts  of  Justice 
in  both  countries,  by  the  rule  being  maintained  as  laid  down  in  Lolley's 
case.  The  greatest  hardship  to  parties  —  for  what  can  be  a  greater  griev- 
ance, than  that  parties  living  bona  fide  in  England,  though  temporarily, 
should  either  not  be  allowed  to  marry  at  all  during  their  residence  here, 
or  if  they  do,  and  afterwards  return  to  their  own  country,  however  great 
its  distance,  that  they  must  be  deprived  of  all  remedy  in  case  of  miscon- 
duct, however  aggravated,  unless  they  undertake  a  voyage  back  to  Eng- 
land, ay,  and  unless  they  can  comply  with  the  parliamentary  forms  in 
serving  notices  ;  —  the  greatest  embarrassment  to  their  rights  —  for  what 
can  be  more  embarrassing  than  that  a  person's  status  should  be  involved 
in  uncertainty,  and  should  be  subject  to  change  its  nature,  as  he  goes  from 
place  to  place  ;  that  he  should  be  married  in  one  country,  and  single,  if 
not  a  felon,  in  another;  bastard  here,  and  legitimate  there?  —  the  ut- 
most inconvenience  to  the  Courts  —  for  what  inconvenience  can  be 
greater,  than  that  they  should  have  to  regard  a  person  as  married  for 
one  purpose  and  not  for  another  —  single  and  a  felon,  if  he  marries  a 
few  yards  to  the  southward  —  lawfully  married,  if  the  ceremony  be  per- 
formed a  few  yards  to  the  north  —  a  bastard,  when  he  claims  land  — 
29* 


342  CONFLICT    OF    LAWS.  [CH.  VII. 

and   in  the    manner,  which    the  Lex  loci  justifies  and 
approves.^ 


legitimate  when  he  sues  for  personal  succession  —  widow,  when  she  de- 
mands the  chattels  of  her  husband  —  his  concubine,  when  she  counts  as 
dowable  of  his  land  ?  It  is  in  vain  to  remind  us  of  the  opportunity,  which 
a  strict  adherence  to  the  lex  loci,  with  respect  to  dissolution  of  the  con- 
tract, would  give  to  violators  of  our  English  marriage-law.  This  objection 
comes  too  late.  Before  the  validity  of  Scotch  marriages  had  been  "sup- 
ported by  decisions  too  numerous  and  too  old  for  any  question,  this  argu- 
ment ab  inconvenienti  might  have  been  urged  and  set  against  those  other 
reasons,  which  I  have  adduced,  drawn  from  the  same  consideration.  But 
we  have  it  now  firmly  established,  as  the  law  of  the  land,  and  daily  acted 
upon  by  persons  of  every  condition,  that,  though  the  law  of  England  in- 
capacitates parties  from  contracting  marriage  here,  they  may  go  for  a  few 
minutes  to  the  Scotch  border,  and  be  married  as  effectually  as  if  they  had 
no  incapacity  whatever  in  their  own  country,  and  then  return,  after  eluding 
the  law,  to  set  its  prohibitions  at  defiance,  without  incurring  any  penalty, 
and  to  obtain  its  aid,  without  any  difiiculty  in  securing  the  enjoyment  of 
all  the  rights  incident  to  the  married  state.  Surely  there  is  neither  sense 
nor  consistency  in  complaining  of  the  risk,  infraction,  or  evasion  arising 
to  the  English  law  from  supporting  Scotch  divorces,  after  having  thus 
given  to  the  Scotch  marriages  the  power  of  eluding,  and  breaking,  and 
defying  that  law  for  so  many  years.  I  have  now  been  commenting  upon 
Lolley's  case  on  its  own  principle  —  that  is,  regarding  it  as  merely  laying 
down  a  rule  for  England,  and  prescribing  how  a  Scotch  divorce  shall  be 
considered  in  this  country,  and  dealt  with  by  its  Courts.  I  have  felt  this 
the  more  necessary,  because  I  do  not  see,  for  the  reasons  which  have  occa- 
sionally been  adverted  to  in  treating  the  other  argument,  how,  consistently 
with  any  principle,  the  Judges,  who  decided  the  case,  could  limit  its  ap- 
plication to  England,  and  think  that  it  did  not  decide  also  on  the  validity 
of  the  divorce  in  Scotland.  They  certainly  could  not  hold  the  second 
English  marriage  invalid  and  felonious  in  England,  without  assuming, 
that  the  Scotch  divorce  was  void  even  in  Scotland.  In  my  view,  of  the 
present  question,  therefore,  it  was  fit  to  show,  that  the  Scotch  Courts  have 
a  good  title  to  consider  the  principle  of  Lolley's  case  erroneous  even  as  an 
English  decision.  This,  it  is  true,  their  Lordships  have  not  done  ;  and 
the  judgment  now  under  appeal  is  rested  upon  the  ground  of  the  Scotch 
divorce  being  suflicient  to  determine  the  marriage  contract  in  Scotland 

1  See  in  English  Law  Magazine,  Vol.  G,  p.  32,  a  review  of  the  English 
law  as  to  Divorces.  See  on  this  very  point  the  judgment  of  Lord 
Brougham  in  Warrender  v.  Warrender,  9  Bligh,  R.  115  to  118,  cited 
ante,  ^  22G  c.  note. 


CH.  VII.]  FOREIGN   DIVORCES.  343 

§  228.  In  America,  questions  respecting  the  nature 
and  effect  of  foreign  divorces  upon  domestic  marriages, 
and  vice  versa,  have,  as  might  be  expected,  not  unfre- 
quently  been  under  discussion  in  our  courts.  In  Mas- 
sachusetts, in  some  early  cases,  the  Supreme  Court 
refused  to  interfere,  and  grant  a  divorce,  where  the 
parties  lived  in  another  State  at  the  time  the  adultery 
was  charged  to  have  been  committed,  and  the  libellant 
had  since  that  time  removed  into  the  State.  These  de- 
cisions seem  mainly  to  have  proceeded  upon  the  con- 
struction of  the  local  statutes,  which  conferred  jurisdic- 
tion upon  the  Court  in  matters  of  divorce ;  but  it  was 
admitted,  that  the  State  to  which  the  parties  belonged 
had  jurisdiction,  and  could  exercise  it  if  it  appeared 
expedient.^  In  a  later  case,  where  a  marriage,  cele- 
brated in  Massachusetts,  had  been  dissolved  in  Vermont, 
upon  a  suit  by  the  husband  for  a  divorce,  for  the  cause 


only.  I  must  now  observe,  that,  supposing  (as  may  fairly  be  conclucled) 
LoUey's  case  to  have  decided,  that  the  divorce  is  void  in  Scotland,  there 
can  be  no  ground  whatever  for  holding,  that  it  is  binding  upon  the,  Scotch 
Courts  on  a  question  of  Scotch  law.  If  the  cases  and  the  authorities  of 
that  law  are  against  it,  the  learned  persons  who  administer  the  system  of 
jurisprudence,  are  not  bound  to  regard  —  nay,  they  are  not  entitled  to 
regard  —  an  English  decision,  framed  by  English  judges  upon  an  English 
case,  and  devoid  of  all  authority  beyond  the  Tweed.  Now,  I  have  no 
doubt  at  all,  that  the  Scotch  authorities  are  in  favor  of  the  jurisdiction, 
and  support  the  decision  under  appeal.  But  I  must  premise  that,  unless 
it  could  be  shoivn  that  they  were  the  other  way,  my  mind  is  made  up 
with  respect  to  the  principle,  that  I  should  be  for  affirming  on  that  ground 
of  principle  alone,  if  precedent  or  dicta  did  not  displace  the  argument.  The 
principle  I  hold  so  clear  upon  grounds  of  general  law,  that  the  proof  is 
thrown,  according  to  my  view,  upon  those  who  would  show  the  Scotch 
law  to  be  the  other  way."  I  have  given  his  Lordship's  reasoning  at 
large,  because  it  seemed  difficult  to  admit  particular  passages,  which  have 
been  already  cited,  or  will  be  cited  hereafter  in  other  connections,  without 
impairing  its  true  force.     Ante,  115  ;  post,  ^  259  b. 

I  Hopkins  u.  Hopkins,  3  Mass.  R.   158;    Carter  r.  Carter,  6  Mass.  R. 
268. 


344  CONFLICT    OF   LAWS.  [CH.   VIL 

of  extreme  cruelty  of  his  wife,  (a  cause  inadmissible  by 
the  laws  of  Massachusetts  to  dissolve  a  marriage,)  it 
appearing,  that  the  parties  had  not  at  the  time  any 
permanent  domicil  in  Vermont,  but  that  the  husband 
had  gone  there  for  the  purpose  of  obtaining  a  divorce, 
the  divorce  was  held  a  mere  nullity,  upon  the  ground, 
that  there  was  no  real  change  of  domicil.  "If"  (said 
the  Court)  "  we  were  to  give  effect  to  this  decree,  we 
should  permit  another  State  to  govern  our  citizens  in 
direct  contravention  of  our  own  statutes ;  and  this  can 
be  required  by  no  rule  of  comity."  ^ 

§  229.  In  another  case,  the  general  question  came 
before  the  Court,  whether  a  marriage,  celebrated  in 
Massachusetts,  could  be  dissolved  by  a  decree  of  di- 
vorce of  the  proper  State  Court  of  Vermont,  both  par- 
ties being  at  the  time  hand  fide  domiciled  in  that  State, 
and  the  cause  of  divorce  being  such  as  would  not 
authorize  a  divorce  a  vinculo  in  Massachusetts.  The 
Court  decided  in  the  affirmative,  upon  the  ground,  that 
the  law  of  the  actual  domicil  must  regulate  the  right. 
The  reasoning  of  the  Court  was  to  the  following  effect. 
"  Regulations  on  the  subject  of  marriage  and  divorce 
are  rather  parts  of  the  criminal,  than  of  the  civil  code ; 
and  apply  not  so  much  to  the  contract  between  the 
individuals  as  to  the  personal  relations  resulting  from 
it,  and  to  the  relative  duties  of  the  parties,  to  their 
standing  and  conduct  in  the  society  of  which  they  are 
members ;  and  these  are  regulated  with  a  principal 
view  to  the  public  order  and  economy,  the  promotion 
of  good  morals,  and  the  happiness  of  the  community. 
A  divorce,  for  example,  in  a  case  of  public  scandal  and 


1  Inhabitants  of  Hanover  v.  Turner,  14  Mass.  R.  227,  231.     See  also 
Barber  v.  Root,  10  Mass.  R.  265,  266. 


CII.  VII.]  FOREIGN   DIVORCES.  345 

reproach,  is  not  a  vindication  of  the  contract  of  fnar- 
riage,  or  a  remedy  to  enforce  it ;  but  a  species  of  pun- 
ishment which  the  public  have  placed  in  the  hands  of 
the  injured  party  to  inflict,  under  the  sanction,  and 
with  the  aid  of  the  competent  tribunal ;  operating  as  a 
redress  of  the  injury,  when  the  contract  having  been 
violated,  the  relation  of  the  parties,  and  their  continu- 
ance in  the  marriage  state,  have  become  intolerable  or 
vexatious  to  them,  and  of  evil  example  to  others.  The 
Lex  loci,  therefore,  by  which  the  conduct  of  married 
persons  is  to  be  regulated,  and  their  relative  duties  are 
to  be  determined,  and  by  which  the  relation  itself  is  to 
be  in  certain  cases  annulled,  must  be  always  referred, 
not  to  the  place  where  the  contract  was  entered  into, 
but  where  it  subsists  for  the  time,  where  the  parties 
have  had  their  domicil,  and  have  been  protected  in  the 
rights  resulting  from  the  marriage  contract,  and  espe- 
cially where  the  parties  are  or  have  been  amenable  for 
any  violation  of  the  duties  incumbent  upon  them  in 
that  relation."  ^ 


1  Barber  v.  Root,  10  Mass.  R.  265.  —  By  the  Revised  Statutes  of  Mas- 
sachusetts, 1835,  oh.  76,  §  9,  10,  11,  it  is  declared,  that  no  divorce  shall 
be  decreed  for  any  cause,  if  the  parties  have  never  lived  together  as  hus- 
band and  wife  in  this  State.  No  divorce  shall  be  decreed  for  any  cause 
which  shall  have  occurred  in  any  other  State  or  country,  unless  the  parties 
had,  before  such  cause  occurred,  been  living  together  as  husband  and  wife 
in  this  State,  ^o  divorce  shall  be  decreed  for  any  cause  which  shall  have 
occurred  in  any  other  State  or  country,  unless  one  of  the  parties  was  then 
living  in  this  State,  It  is  also  by  another  section  (^  39)  of  the  same 
chapter  provided,  that  when  an  inhabitant  of  this  State  shall  go  into  any 
other  State  or  country,  in  order  to  obtain  a  divorce  for  any  cause,  which 
had  occurred  here,  and  whilst  the  parties  resided  here,  or  for  any  cause, 
which  would  not  authorize  a  divorce  by  the  laws  of  this  State,  a  divorce 
so  obtained  shall  be  of  no  force  or  effect  in  this  State.  [By  a  recent 
statute  in  that  State,  divorces  may  be  granted  for  causes  occurring  out  of 
the  State,  if  the  libellant  has  resided  five  years  in  the  State  previous  to 
filing  the  libel.     Stat.  1S43,  c.  47.] 


346  CONFLICT    OF   LAWS.  [CH.  VII. 

§•229  a.  In  another  case  the  (juestion,  as  to  the  juris- 
diction to  found  a  suit  for  a  divorce,  also  arose,  and  it 
was  held,  that  ordinarily  such  a  suit  cannot  be  enter- 
tained, unless  the  parties  are  hand  fide  domiciled  in  the 
State,  in  which  the  suit  is  brought ;  and  that  for  this 
purpose  the  domicil  of  the  husband  must  be  treated  as 
the  domicil  of  his  wife.  Hence,  if  a  husband  should 
lond  fide  remove  from  Massachusetts  to  another  State 
with  his  wife,  and  there  a  good  cause  for  a  divorce  by 
law  should  occur,  a  suit  could  not  be  maintained  there- 
for in  the  courts  of  Massachusetts.^  But  the  Court 
thought,  that  cases  might  arise,  in  which  the  change  of 
domicil  of  the  husband  might  not  deprive  the  wife-  of 
her  right  to  sue  for  a  divorce  in  the  State,  where  they 
originally  lived  together.^ 


1  Harteau  v.  Harteau,  14  Pick.  R.  181. 

2  Ibid.  On  this  occasion  Mr.  Chief  Justice  Shaw,  in  delivering  the 
opinion  of  the  Court,  said  ;  "  Much  obscurity  has,  we  think,  been  thrown 
on  the  subject,  by  confounding  the  two  questions,  which  are  essentially 
different,  viz.  1.  In  what  cases  a  party  is  entitled  to  claim  a  divorce  ;  and 
2.  In  what  county  the  libel  should  be  brought.  As  it  is  a  right  conferred 
by  statute,  the  one  question  may  sometimes  depend  on  the  other;  for  if  by 
the  terms  of  the  statute  no  suit  can  be  instituted,  it  is  very  clear,  that  no 
divorce  can  be  had.  But  I  think  there  may  be  cases,  where  the  statute 
confers  a  right  to  have  a  divorce,  in  which  the  statute  gives  a  general 
jurisdiction  to  this  Court,  and  yet  where  the  parties  do  not  live,  that  is, 
have  their  domicil,  either  at  the  time  of  the  act  done,  or  at  the  time  of  the 
suit  commenced,  in  any  county  in  this  Commonwealth.  If  so,  there  are 
cases,  where  the  statute  cannot  be  literally  complied  with,  and  must  be 
construed  cy  pres  according  to  the  intent.  Suppose  a  husband  commits 
adultery,  and  then  purchases  a  house  and  actually  takes  up  his  domicil  in 
another  State,  but  before  his  wife  has  joined  him,  she  is  apprised  of  the 
fact,  and  immediately  files  a  libel  for  a  divorce,  and  obtains  an  order  to 
protect  her  from  the  power  of  her  husband,  as  by  law  she  may.  He  is  an 
inhabitant  of  another  State,  and  can  in  no  sense  be  said  to  live  in  any 
county  in  this  State.  And  yet  it  would  be  difficult  to  say,  thas  she  is  not 
entitled  to  have  a  divorce  here.  Supposing,  instead  of  the  last  case,  he 
has  actually  purchased  a  house  and  changed  his  domicil  to  another  State, 
and  there  commits  adultery,  and  the  wife  not  having  joined  him,  and  not 


CH.  VII.]  FOREIGN   DIVORCES.  •  347 

§  230.  In  New  York,  as  far  as  decisions  have  gone, 
they  coincide  with  those  of  Massachusetts.     Thus,  in  a 


having  left  her  residence  in  this  State,  becomes  acquainted  with  the  fact, 
and  libels  and  obtains  a  similar  order,  could  she  not  maintain  it  1  Yet,  in 
the  latter  case,  at  the  time  of  the  act  done,  and  in  the  other,  at  the  time  of 
the  suit  instituted,  the  respondent,  one  of  the  parties,  certainly  did  not  live 
in  any  county  of  this  Commonwealth.  This  suggests  another  course  of 
inquiry,  that  is,  how  far  the  maxim  is  applicable  to  this  case,  '  that  the 
domicil  of  the  wife  follows  that  of  the  husband.'  Can  this  maxim  be  true 
in  its  application  to  this  subject,  where  the  wife  claims  to  act,  and  by  law, 
to  a  certain  extent  and  in  certain  cases,  is  allowed  to  act,  adversely  to  her 
husband?  It  would  oust  the  Court  of  it#  jurisdiction,  in  all  cases,  where 
the  husband  should  change  his  domicil  to  another  State,  before  the  suit  is 
instituted.  It  is  in  the  power  of  the  husband  to  change  and  fix  his  domi- 
cil at  his  will.  If  the  maxim  could  apply,  a  man  might  go  from  this  county 
to  Providence,  take  a  house,  live  in  open  adultery,  abandoning  his  wife  al- 
together, and  yet  she  could  not  libel  for  a  divorce  in  this  State,  where,  till 
such  change  of  domicil,  they  had  always  lived.  He  clearly  lives  in  Rhode 
Island  ;  her  domicil,  according  to  the  maxim,  follows  his  ;  she  therefore, 
in  contemplation  of  law,  is  domiciled  there  too  ;  so  that  neither  of  the  par- 
ties can  be  said  to  live  in  this  Commonwealth.  It  is  probably  a  just  view, 
to  consider,  that  the  maxim  is  founded  upon  the  theoretic  identity  of  per- 
son, and  of  interest,  between  husband  and  wife,  as  established  by  law,  and 
the  presumption,  that  from  the  nature  of  that  relation,  the  home  of  the  one 
is  that  of  the  other,  and  intended  to  promote,  strengthen,  and  secure  their 
interests  in  this  relation,  as  it  ordinarily  exists,  where  union  and  harmony 
prevail.  But  the  law  will  recognize  a  wife,  as  having  a  separate  exist- 
ence, and  separate  interests,  and  separate  rights,  in  those  cases,  where  the 
express  object  of  all  proceedings  is  to  show,  that  the  relation  itself  ought 
to  be  dissolved,  or  so  modified  as  to  establish  separate  interests,  and  espe- 
cially a  separate  domicil  and  home,  bed  and  board  being  put,  a  part  for  the 
whole,  as  expressive  of  the  idea  of  home.  Otherwise,  the  parties  in  this 
respect  would  stand  upon  very  unequal  grounds,  it  being  in  the  power  of 
the  husband  to  change  his  domicil  at  will,  but  not  in  that  of  the  wife.  The 
husband  might  deprive  the  wife  of  the  means  of  enforcing  her  rights,  and 
in  effect  of  the  rights  themselves,  and  of  the  protection  of  the  laws  of  the 
Commonwealth,  at  the  same  time,  that  his  own  misconduct  gives  her  a 
right  to  be  rescued  from  his  power  on  account  of  his  own  misconduct  to- 
wards her.  Dean  v.  Richmond,  5  Pick.  461  ;  B^ber  v.  Root,  10  INIass. 
R.  200.  The  place,  where  the  marriage  was  had,  seems  to  be  of  no  im- 
portance. The  law  looks  at  the  relation  of  husband  and  wife,  as  it  sub- 
sists and  is  regulated  by  our  laws,  without  considering  under  what  law  or 


348  .CONFLICT    OF    LAWS.  [CH.  VII. 

case,  where  the  marriage  was  ia  that  State,  and  after- 
wards the  wife  went  to  Vermont,  and  instituted  a  suit 
for  divorce  there,  for  a  cause  not  recognized  by  the  laws 
of  New  York,  against  her  husband,  who  remained  domi- 
ciled in  New  York,  the  Supreme  Court  of  the  latter 
State  refused  to  carry  the  decree  into  effect  in  regard  to 
alimony,  notwithstanding  the  husband  had  appeared  in 


in  what  country  the  marriage  was  contracted.  The  good  sense  of  the 
thing  seems  to  be,  if  the  statute  will  permit  us  to  reach  it,  that  where  par- 
ties have  bona  fide  taken  up  a  domicil  in  this  Commonweallh,  and  have 
resided  under  the  protection  and  .subject  to  the  control  of  our  laws,  and 
during  the  continuance  of  such  domicil,  one  does  an  act,  which  may  enti- 
tle the  other  to  a  divorce,  such  divorce  shall  be  granted,  and  the  suit  for  it 
entertained,  although  the  fact  was  done  out  of  the  jurisdiction,  and  whether 
the  act  be  a  crime,  which  would  subject  a  party  to  punishment  or  not ; 
that  after  such  right  has  accrued,  it  cannot  be  defeated,  either  by  the  ac- 
tual absence  of  the  other  party,  however  long  continued  animo  revertendi, 
or  by  a  colorable  change  of  domicil,  or  even  by  an  actual  change  of  domi- 
cil ;  and  that  it  shall  not  be  considered  in  law,  that  the  change  of  domicil 
of  the  husband  draws  after  it  the  domicil  of  the  wife  to  another  State,  so 
as  to  oust  the  courts  of  this  State  of  their  jurisdiction,  and  deprive  the  in- 
jured wife  of  the  protection  of  the  laws  of  this  Commonweallh  and  of  her 
right  to  a  divorce.  But  where  the  parties  have  bona  fide  renounced  their 
domicil  in  this  State,  though  married  here,  and  taken  up  a  domicil  in  an- 
other Slate,  and  there  live  as  man  and  wife,  and  an  act  is  done  by  one, 
which,  if  done  in  this  State,  would  entitle  the  other  to  a  divorce,  and  one 
of  the  parties  comes  into  this  State,  the  courts  of  this  Commonwealth  have 
not  such  jurisdiction  of  the  parlies,  and  of  their  relation  as  husband  and 
wife,  as  to  warrant  them  in  saying,  that  ihe  marriage  should  be  dissolved. 
The  case  of  Barber  v.  Root,  is  an  authority  for  saying,  that  such  a  divorce 
would  not  be  valid  in  New  York.  It  is  of  importance,  that  such  a  ques- 
tion should  be  regulated,  if  possible,  not  by  local  law,  or  local  usage, 
under  which  the  marriage  relation  should  be  deemed  subsisting  in  one 
State  and  dissolved  in  another  ;  but  upon  some  general  principle,  which 
can  be  recognized  in  all  Stales  and  countries,  so  that  parlies  who  are 
deemed  husband  and  wife  in  one,  shall  be  held  so  in  all.  So  many  inte- 
resting relations,  so  many  collateral  and  deprivative  rights  of  properly,  and 
of  inheritance,  so  many  correlative  duties  depend  upon  the  subsistence  of 
this  relation,  that  it  is  scarcely  possible  to  overrate  the  importance  of  placing 
it  upon  some  genera;]  and  uniform  principle,  which  shall  be  recognized  and 
adopted  in  all  civilized  states." 


CH.  VII.]  FOREIGN   DIVORCES.  349 

the  cause/  upon  the  ground,  that,  there  being  no  lond 
fide  change  of  the  domicil  of  the  parties,  it  was  an  at- 
tempt fraudulently  to  evade  the  force  and  operation  of 
the  laws  of  New  York.-  The  Court,  however,  abstained 
from  declaring,  what  was  the  legal  effect  of  the  divorce 
so  obtained.  In  another  case,  where  the  marriage  was 
in  Connecticut,  and  the  husband  afterwards  went  to 
Vermont,  and  instituted  a  suit  there  for  a  divorce 
against  his  wife,  who  never  resided  there,  and  never  ap- 
peared in  the  suit,  it  was  held,  that  the  decree  of  divorce, 
obtained  in  Vermont,  was  invalid,  being  infraudem  legis 
of  the  State,  where  the  parties  were  married,  and  had 
their  domicil.  It  was  further  held,  that  the  Courts  of 
Vermont  could  not  possess  a  proper  jurisdiction  over 
the  case,  both  parties  not  being  within  the  State,  and 
the  wife  not  having  had  any  personal  notice  of  the  suit.^ 
What  would  be  the  effect  of  a  marriage  in  Connecticut, 
a  subsequent  hond  fide  change  of  domicil  to  New  York, 
and  then  a  divorce  in  Connecticut,  both  parties  appear- 
ing in  the  suit,  remains  as  yet  undecided. 

§  230  a.  Upon  the  whole,  the  doctrine  now  firmly 
established  in  America  upon  the  subject  of  divorce  is, 
that  the  law  of  the  place  of  the  actual  hond  fide  domicil 
of  the  parties  gives  jurisdiction  to  the  proper  courts  to 
decree  a  divorce  for  any  cause,  allowed  by  the  local  law 
without  any  reference  to  the  law  of  the  place  of  the  ori- 
ginal marriage,  or  the  place,  where  the  offence,  for  which 


1  This  does  not  appear  in  the  statement  of  facts ;  but  it  is  averred  by 
counsel,  to  appear  upon  the  exemplification  of  the  record  of  the  decree  of 
Vermont.     1  John.  R.  431. 

2  Jackson  v.  Jackson,  1  John.  R.  424. 

3  Broden  v.  Fitch,  15  John.  R.  121.  See  2  Kent,  Comm.  Lect.  27,  p. 
108  to  p.  118,  3d  edit.    See  also  Bradshaw  v.  Heath,  14  Wend.  R.  407. 

CONFL.  30 


350  CONFLICT    OF   LAWS.  [CH.  VIL 

the  divorce  is  allowed,  was  committed.^  Perhaps  the 
doctrine  cannot  be  stated,  with  more  clearness,  than  in 
the  reasoning  of  Mr.  Chief  Justice  Gibson,  in  a  recent 
case.  "The  law  of  the  place  (says  he)  is  necessarily 
the  law  of  the  marriage,  for  its  primitive  obligation ; 
but,  except  on  the  principle  of  perpetual  submission  to 
its  supremacy  in  all  things,  it  is  not  the  law  of  the  con- 
tract for  the  determination  of  its  dissolubility.  Is,  then, 
a  rule  thus  founded,  adapted  to  the  jurisprudence  of  a 
country,  whose  law  of  allegiance  is  different,  and  whose 
asserted  right  of  affiliation  in  respect  to  those  whom  it 
admits  on  that  ground  to  its  civil  and  political  privi- 
leges, divorce  among  the  rest,  concedes  the  same  right  to 
every  other  country  ?  Framed  on  the  basis  of  this  law, 
the  contract  implies  no  perpetuity  of  municipal  regula- 
tion. While  the  parties  remain  subject  to  our  jurisdic- 
tion, the  marriage  is  dissoluble  only  by  our  law ;  when 
they  are  remitted  to  another,  it  is  incidentally  remitted 
along  with  them.  And  that  consequence  must  ensue, 
as  well  when  they  are  remitted  to  a  jurisdiction  entirely 
foreign,  as  when  they  are  remitted  to  that  of  a  sister 
State  ;  for  whatever  ultra-territorial  force  a  sentence  of 
divorce,  by  a  Court  of  competent  jurisdiction,  may  have 
been  thought  to  gain  from  the  constitutional  precept, 
that  the  judgment  of  a  State  Court  is  to  receive  the 
same  faith  and  credit  in  every  other  State  as  in  its  own, 
nothing  in  the  federal  constitution  or  laws  has  been 
thought  to  touch  the  question  of  jurisdiction ;  and  the 
members  of  the  Union,  therefore,  stand  towards  each 
other  in  relation  to  it  as  strangers.  With  what  con- 
sistency, then,  would  naturalized  citizens  be  allowed 


1  Pawling  V.  Bird's  Ex'ors,  13  John.  R.  192,  208,  209. 


CH.  VII.]  FOREIGN   DIVORCES.  351 

our  law  of  divorce,  if  the  validity  of  a  divorce  by  the 
law  of  the  domicil  in  a  sister  State  were  disallowed,  be- 
cause the  marriage  had  not  the  same  origin  ?  Transfer 
of  allegiance  and  domicil  is  a  contingency,  which  enters 
into  the  views  of  the  parties,  and  of  which  the  wife  con- 
sents to  bear  the  risk.  By  sanctioning  this  transfer 
beforehand,  we  consent  to  part  with  the  municipal  go- 
vernance incident  to  it ;  but  with  this  limitation  we  part 
not  with  the  remedy  of  past  transgression."  ^ 

§  230  5.  The  incidents  to  a  foreign  divorce  are  also 
naturally  to  be  deduced  from  the  law  of  the  place,  where 
it  is  decreed.  If  valid  there,  the  divorce  will  have,  and 
ought  in  general  to  have  all  the  effects,  in  every  other 
country,  upon  personal  property  locally  situated  there, 
which  are  properly  attributable  to  it  in  the  forum,  where 
it  is  decreed.  In  respect  to  real  or  immovable  property, 
the  same  effects  would  in  general  be  attributed  to  such 
divorce,  as  would  ordinarily  belong  to  a  divorce  of  the 
same  sort  by  the  L^x  loci  rei  sitce.  If  a  dissolution  of 
the  marriage  would  there  be  consequent  upon  such  a 
divorce,  and  would  there  extinguish  the  right  of  dower, 
or  of  tenancy  by  the  curtesy,  according  to  such  local  law, 
then  the  like  effects  would  be  attributed  to  the  foreign 
divorce,  which  worked  a  like  dissolution  of  the  marriage.^ 


1  Dorsey  v.  Dorsey,  7  Watts,  349  ;  S.  C.  1  Chand.  Law  Reporter,  287, 
289.     See  Maguire  v.  Maguire,  7  Dana,  R.  18] . 

2  Warrender  v.  Warrender,  9  Bligh,  R.  127  ;  ante,  §  226  c,  note. 


!52  CONFLICT    OF   LAWS.  [CH.  VIIL 


CHAPTER  VIIL 


FOREIGN   CONTRACTS. 


§  231.  We  next  come  to  the  consideration  of  the 
highly  important  branch  of  international  jurisprudence, 
arising  from  the  conflict  of  laws  in  matters  of  contract 
generally.^  This  subject  has  been  very  much  discuss- 
ed, not  only  by  foreign  jurists  and  foreign  courts,  but 
in  our  own  domestic  tribunals.  The  general  principles, 
which  regulate  it,  have,  therefore,  acquired  a  high  de- 
gree of  certainty ;  although,  upon  so  complex  a  topic, 
many  intricate  and  difficult  questions  yet  remain  un- 
settled. 

§  232.  It  is  easy  to  see,  that,  in  the  common  inter- 
course of  different  countries,  many  circumstances  may 
be  required  to  be  taken  into  consideration,  before  it  can 
be  clearly  ascertained,  what  is  the  true  rule,  by  which 
the  validity,  obligation,  and  interpretation  of  contracts 
are  to  be  governed.  To  make  a  contract  valid,  it  is  a 
universal  principle,  admitted  by  the  whole  world,  that 
it  should  be  made  by  parties  capable  to  contract ;  that 
it  should  be  voluntary ;  that  it  should  be  upon  a  suffi- 
cient consideration ;  that  it  should  be  lawful  in  its  na- 
ture ;  and  that  it  should  be  in  its  terms  reasonably  cer- 


^  See  on  the  subject  of  this  chapter,  1  Burge,  Comm.  on  Col.  and  For. 
Law,  Pt.  1,  ch.  1,  p.  23,  24,29;  Id.  Vol.  3,  Pt.  3,  ch.  22,  p.  749  to  p. 
780  ;  Foelix,  Conflict,  des  Lois,  Revue  Etranger  et  Francais,  Tom.  7, 
1840,  ^  39  to  51,  p.  344  to  p.  365. 


CH.  Vm.]  FOREIGN   CONTRACTS.     '  353 

tain.     But  upon  some  of  these  points  there  is  a  diver- 
sity in  the  positive  and  customary  laws  of  different  na- 
tions.    Persons,  capable  in  one  country,  are  incapable 
by  the  laws  of  another;^  considerations,  good  in  one 
country,  are  insufficient,  or  invalid  in  another ;  the  pub- 
lic policy  of  one   country  permits,  or  favors   certain 
agreements,  which  are  prohibited  in  another ;  the  forms, 
prescribed  by  the  laws  of  one  country,  to  insure  valid- 
ity and   obligation  of  contracts,  are  unknown  in  an- 
other ;  and  the  rights,  acknowledged  by  one  country, 
are  not  commensurate  with  those  belonging  to  another. 
A  person  sometimes  contracts  in  one  country,  and  is 
domiciled  in  another,  and  is  to  pay  in  a  third ;  and 
sometimes  the  property,  which  is  the  subject  of  the  con- 
tract, is  situate  in  a  fourth ;  and  each  of  these  countries 
may  have  different,  and  even  opposite  laws,  affecting 
the  subject-matter.     What  then  is  to  be  done  in  this 
conflict  of  laws  ?    What  law  is  to  regulate  the  contract, 
either  to  determine  the  rights,  or  the  remedies,  or  the 
defences  growing  out  of  it ;  or  the  consequences  flow- 
ing from  it  ?     What  law  is  to  interpret  its  terms,  and 
ascertain  the  nature,  character,  and  extent  of  its  stipu- 
lations ?     Boullenois  has  very  justly  said,  that  these 
are  questions  of  great  importance,  and  embrace  a  wide 
extent  of  objects.^ 

§  233.  There  are  two  texts  of  the  civil  law,  which 
treat  of  this  subject,  which  have  been  supposed  by  Civil- 
ians and  Jurists  to  involve  an  apparent  antinomy. 
One  seems  to  require,  that  the  place  where  the  con- 
tract is  entered  into,  should  alone  govern  the  contract. 


1  Ante,  ^  51  to  90. 

2  2  Boullenois,  Obser.  46,  p.  445. 

30* 


354  CONFLICT    OF   LAWS.  [CH.  VIIL 

Si  fundus  vcenierit,  ex  consuetiidine  ejus  regionis,  in  cjiid 
negotium  gestum  est, pro  evictione  caveri  oportet  ;^  If  land 
shall  be  sold,  it  is  to  be  warranted  against  eviction  ac- 
cording to  the  law  of  the  country,  in  which  the  busi- 
ness is  transacted.  The  other,  on  the  contrary,  seems 
to  require,  that  the  place,  where  the  contract  is  to  be 
executed,  should  govern  it.  Contraxisse  iimisqiiisqiie  in 
eo  loco  intelUgikir,  in  quo,  lit  solver ei,  se  ohligavit;  Every 
one  is  understood  to  have  contracted  in  the  place,  in 
which  he  has  bound  himself  to  perform  the  contract.^ 

§  234.  Dumoulin  has  endeavored  to  reconcile  these 
texts,  by  supposing,  that  the  former  Law,  Si  fundus, 
truly  and  fundamentally  presupposes,  that  the  contract- 
ing ^parties  have  their  domicil  in  the  place  of  the  con- 
tract, and  that  the  contract  is  there  to  be  executed ; 
but  that  the  latter  Law,  Contraxisse,  applies  to  the  case, 
where  the  party  has  bound  himself  to  execute  the  con- 
tract throughout  in  another  place,  than  that,  in  which 
the  contract  is  made.  Sed  hie  venditor  eo  ipso  se  ohligat, 
solutionem  et  traditionem  realem,  per  se  v  el  per  alium  facere 
in  loco,  in  quo,  fundus  situs  est ;  ergo,  ihi  contraxisse,  cense- 
tur.  Et  sic  Lex,  Si  fundus,  ex  viva  et  radicate  ratione,pra2- 
siipponit  contrahentes  habere  domicilium  in  loco  contractus? 


1  Dig,  Lib.  21,  tit.  2,  1.  G  ;  Tothier,  Pand.  Lib.  21,  tit.  2,  n.  7.  See 
Everhardus,  Concil.  178,  p.  207;  post,  §  300  b.  See  Bartolus's  interpret- 
ation of  this  law.  Barlolus,  ad  Cod.  Lib.  1,  tit.  1,  1.  1,  n.  14,  15,  16  ; 
post,  ^  301. 

2  Dig.  Lib.  44,  tit.  7,  1.  21  ;  Pothier,  Pand.  Lib.  5,  tit.  1,  n.  3G.— To 
the  same  effect  is  the  text ;  "  Contractum  autem  non  utique  eo  loco  intelli- 
gitur,  quo  negotium  gestum  sit,  sed  quo  solvenda  est  pecunia."  Dig. 
Lib.  42,  tit.  5,  1.  3  ;  Pothier,  Pand.  Lib.  42,  tit.  5,  n.  24. 

3  Molin.  Comment,  In.  Cod.  Lib.  l,tit.  1,1.  1,  Conclusiones  deStatutis, 
Molin.  Opera,  Tom.  3,  p.  554  ;  Everhardus,  Consil.  178,  p.  206,  207  ; 
3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  851,  852,  853  ; 
2  Boullenois,  Obser.  46,  p.  445,  446,  447. 


CH.  VIII.]  FOREIGN   CONTRACTS.  355 

Le  Brun  says,  that  when  the  Doctors  say,  in  comment- 
ing on  the  Law,  {Si  fundus,)  Locus  contractus  regit  in 
contractihus,  they  mean  in  every  thing,  which  concerns 
the  manner  of  contracting,  the  exterior  form  of  the  con- 
tract. But  that  the  law  of  the  domicil  is  to  govern  in 
whatever  respects  the  substance  and  effects  of  the  acts 
done.^  However,  the  generality  of  French  authors  have 
reconciled  these  laws  in  a  different  manner ;  by  consi- 
dering, that  the  place  of  a  contract  admits  of  a  double 
meaning,  viz.  the  place,  where  the  contract  is  entered 
into,  Ubi  verba  profenintur,  and  that,  where  the  contract 
is  to  be  executed,  where  payment  is  to  be  made,  Ubi 
solidio  distinatiir?  They  think,  therefore,  that  the  Law, 
Si  fundus,  is  to  be  understood  of  the  place,  where  the 
contract  is  entered  into,  Ubi  verba  irrolata  sunt ;  and, 
that  it  properly  applies  to  cases,  where  it  is  necessary 
to  decide  upon  the  form,  either  of  the  proof,  or  the  sub- 
stance, or  the  constitution,  or  the  mode  of  the  contract, 
or  of  its  extrinsic  ceremonies  or  solemnities ;  and,  that 
the  Law,  Contraxisse,  applies  to  the  case  where  the  ques- 
tion is  respecting  the  rights,  which  spring  from  the  con- 
tract, of  which  the  execution  and  performance  are  refer- 
red to  another  place.^ 

§  235.  Boullenois  holds  both  interpretations  unsatis- 
factory, and  insufficient  for  many  occasions  ;  for  they 
suppose,  that  two  places  only  are  to  be  examined  in 
resolving  all  questions,  the  place  of  the  making,  and  the 
place  of  performance  of  the  contract;  and  in  effect, 
they  put  aside  the  law  of  the  place  of  the  situs  of  the 
thing  (m  sitw),  and  that  of  the  domicil  of  the  parties, 


1  Le  Brun,  De  la  Communaute,  Liv.  1,  ch.  2,  ^  46. 

2  2  Boullenois,  Observ.  40,  p.  446,  447  ;  post,  ^  299  to  304. 

3  Ibid.     See  also  Everhard.  Consil.  78,  n.  18,  19,  p.  207. 


356  CONFLICT    OF   LAWS.  [cH.  VIII. 

whicli  are  often  imperative,  and  on  many  occasions  de- 
serve a  preference.^  He  adds,  that  there  is  another  dif- 
ficulty, which  arises  in  these  mixed  questions,  which  is, 
that  the  laws  in  one  place  affix  to  certain  clauses  a  cer- 
tain sense  and  a  certain  effect,  and  the  laws  of  another 
place  give  them  a  sense  and  an  effect,  either  more  exten- 
sive, or  more  restrained.^  He  also  informs  us,  that 
many  foreign  jurists  have  warned  us  against  two  errors, 
which  constitute  the  quicksands  of  the  law  on  this  sub- 
ject, and  which  are  necessary  to  be  avoided.^  One  of 
these  errors  is  the  confounding  of  those  things,  which 
belong  to  the  solemnities  of  the  acts,  and  the  effects 
which  result  from  the  nature  of  the  acts,  on  the  one 
side,  with  those,  which  belong  to  the  charges  or  liens, 
which  spring  up  after  the  acts,  purely  as  accidents,  on 
the  other  side.''  The  other,  the  omission  in  a  proper 
case  to  have  a  due  regard  or  deference  to  the  law  of  the 
situs  or  locality  of  the  thing.^ 

§  236.  Msevius  has  given  us  a  warning  in  this  mat- 
ter against  confounding  the  solemnities  of  acts  and  con- 
tracts, as  well  as  the  effects  caused  by  them,  with  the 
charges  thereof,  and  extrinsic  accidents,  which  follow 
the  contracts,  but  are  not  in  the  contracts  themselves. 
Cave,  autem,  in  licec  materia,  confimdas  actuiim  et  contractu- 
um  solennia,  nee  non  effectus  ac  ipsis  causatos  cum  eorum 
onere,  et  accidenti  exirinseco,  quod  contractus  suhsequittir, 
sed  ex  non  ipsis  contractibus  est.  Id,  dum  multi  ignorant, 
aut  non  discernunt,  forenses  maximd  Icedunt,  et  gravantur^ 


1  2  BouUenois,  Obscrv.  46,  p.  447. 

2  Post,  ^  275. 

3  2  BouUenois,  Observ.  46,  p.  447,  449. 

4  2  BouUenois,  Observ.  46,  p.  447,  448,  449. 
"  2  BouUenois,  Observ.  46,  p.  449,  450. 

^  Msevius,  ad  Jus  Lubecense,  Quest.  Prelim.  4,  n.  18,  p.  22. 


CH.  VIII.]  FOREIGN   CONTRACTS.  357 

So  that,  according  to  Msevius,  the  law  of  the  place  of 
the  contract  is  to  govern,  first,  as  to  the  solemnities  of 
the  act  or  contract;  and  secondly,  as  to  the  eJBfects 
caused  thereby ;  but  as  to  the  charges  (onus)  and  ex- 
trinsic accidents,  that  it  is  not  to  govern.  Forenses  ser- 
vare  teneri  statida  et  consiietudines  loci,  iibi  aliqiiid  agtint,  et 
contrahunt  ad  validitatem  actus  et  contractus.  Statiituni 
enim  actus  sen  contt-actiis  semper  attenditiir,  ciii  disjjonentes 
vel  conirahantes  se  alUgare  et  conformarc  voluisse  censetv.r} 
And  speaking  afterward  upon  the  charges  and  extrinsic 
accidents  of  acts  and  contracts,  he  adds ;  M  Ms  enim, 
quia  non  spectant  ad  formam  modumque  contrahendi,  con- 
tractum  aiitem  extrinsecus  siibsequuntur,  non  sectamur  statida 
loci  contractus?  In  this  system  he  is  not  generally  fol- 
lowed ;  and  Boullenois  has  observed,  that  it  is  very  dif- 
ficult to  say,  what  ought  to  be  deemed  to  belong  to  the 
solemnities  of  contracts ;  what  are  the  effects  caused  by 
them  ;  and  what  are  the  charges  and  extrinsic  accidents 
resulting  from  them.^ 

§  237.  Burgundus  has  offered  the  following  system. 
In  relation  to  express  contracts  two  things  are  to  be 
considered,  the  form  and  the  matter  of  the  contract. 
( Omnis  aidem  obligandi  ratio  haheat,  necesse  est,  rem  et  verha, 
hoc  est,  formam  et  materiam^)  But  he  adds,  that  it  is 
not  indiscriminately  permitted  to  contract  in  all  times 
and  places  ;  but  it  is  very  often  material,  with  what  per- 
sons we  contract ;  and  all  these  things  will  be  unavail- 
ing, unless  the  contract  is  conformable  to  the  laws. 


1  Msevius,  ad  Jus  Lubecense,  Quest.  Prelim.  4,  n.  11,  13,  14,  p.  22. 

2  Maevius,  ad  Jus  Lubecense,  Quest.  4,  n.  18,  p.  22  ;  2  Boullenois,  Ob- 
serv.  46,  p.  448,  449,  450. 

3  2  Boullenois,  Observ.  46,  p.  447,  448,  449. 

4  Burgundus,  Tract.  4,  n.  1,  p.  100. 


358  CONFLICT   OF  LAWS.  [CH.  VIIL 

Sed  nee  omni  loco  et  tempore  contrahere  licet ;  plurimiim 
qiioqiie  refert,  cum  qidhus  stipiilemiir.  Et  sane  hcec  omnia 
siipervaciia  sint,  nisi  et  secundum  leges  paciscamur.^  These 
things  being  premised,  Burgundus  lays  down  the  follow- 
ing rules  ;  first,  in  every  thing,  which  regards  the  form 
of  contracts,  and  the  perfecting  of  them,  the  law  of  the 
place,  where  the  contract  is  entered  into,  is  to  be  fol- 
lowed. M  quidem  in  scripturd  instrumenti,  in  solemnitati- 
hus  et  ceremoniis,  et  generaliter  in  omnibus,  quae  adformam, 
ejusque  perfectionem  pertinent,  spectanda  est  consuetudo  re- 
gionis,  uU  fit  negotiatio?  These  he  deems  the  substan- 
tial of  the  contract  {sulstantialia  contractus^ ;  and  among 
them  he  includes  the  necessity  of  giving  a  caution  or 
security  upon  a  sale  against  any  eviction,  according  to 
the  customary  law.^  So,  the  laws,  which  determine  the 
place  and  time,  when  and  where  contracts  ought  to  be 
made,  belong  to  the  perfection  of  the  form ;  Conditio 
loci  et  temporis  perfectiqnem  formce  quoque  respiciunt  ;  et 
ideo  regione  contractus  pariter  dirigwdur^  In  like  man- 
ner, all  special  stipulations  for  a  limited  responsibility, 
as  of  particular  heirs  only,  belong  to  the  form.^  And 
he  concludes  by  observing,  that  in  all  questions,  touch- 
ing the  obligation  of  the  contract,  or  its  interpretation ; 
as,  for  example,  whom  it  binds,  and  to  what  extent ; 
what  is  included,  what  is  excluded  from  it ;  also  in  re- 
spect to  all  actions,  and  all  ambiguities,  arising  out  of 
the  contract ;  we  are  first  to  follow  what  has  been  done 
by  the  parties ;  or  if  it  does  not  appear,  what  has  been 
done,  the  consequence  will  be,  that  we  are  to  follow 


'^Burgundus,  Tract.  4,  n.  1,  p.  100,  101  ;  2  BouUenois,  Observ.  46,  p. 
450,  451  ;  post,  ^  300  a. 

2  Burgundus,  Tract.  4,n.  7,  n.  29,  p.  104,  105. 

3  Id.  n.  7,  p.  105.  1  Ibid.  5  Ibid. 


CH.  VIII.]  FOREIGN    CONTRACTS.  359 

what  is  usual  in  the  country,  where  the  act  took  place. 
For  the  law  is  the  common  instructor  of  the  whole  coun- 
try, whose  voice  all  hear ;  and,  therefore,  every  one, 
who  contracts  in  another  province,  is  not  supposed  to 
be  ignorant  of  its  customs ;  but  whatever  he  does  not 
express  plainly,  he  refers  to  the  interpretation  of  the 
law,  and  wills  and  intends  that,  which  the  law  itself 
wills  and  intends.  And  all  these  things  may  well  be 
said  of  the  solemnities  of  contracts.  Igikir,  ut  ikiucis  ah- 
solvam,  qiioties  de  vinculo  oUigationis  vel  de  ejus  inteiyreta- 
tione  qucentur,  velidi,  qiios  et  in  quantum  oMget,  quid  sen- 
tentice  stipulationes  inesse,  quid  abesse  credi  oporteat :  item 
in  omnibus  actionibus,  et  ambiguitcdibuSy  quce.  hide  oriuntur, 
primiim  qiddem  id  sequemur,  quod  inter  partes  actum  erit  ; 
aut  si  nan  paret,  quid  actum  est,  erit  consequens,  ut  id  se- 
quamur,  quod  in  regione  in  qua  actum  est,frequentatur.  Im- 
putandum  enim  ei  est,  qui  dicit,  vel  agit,  quod  apertius 
legem  non  dixerit,  in  cujus  potestate  erat  cuncta  complecti,  et 
voliintatem  suani  verbis  exprimere.  Nee  enim  stipulator 
ferendus  est,  si  ejus  intersit  aliter  actum  non  esse,  ciim  scire 
debiierit,  id  quod  a  contraJientibus  est  omissum,  supplcri  legi- 
bus,  quce  haucl  aliter  dirigunt  humanas  actiones,  quam  cor- 
pora nostra  lima  alternat.  Lex  enim  communis  est  prescep- 
trix  civitatis,  cujus  vocem  cuncti  exaudiunt.  Et  ideo,  qid  in 
aliend  provincid  paciscitur,  non  credendus  est  esse  consuetii- 
dinis  ignarus  :  sed  id,  quod  palam  verbis  non  exprimit,  ad 
interpretationem  legum  se  referre,  atque  idem  velle,  et  inten- 
dere,  quod  lex  ipsa  velit.  Et  hcec  quidem  cuncta  de  solem- 
nitate  dicta  sint}  He  then  passes  to  the  consideration  of 
the  matter  of  the  contract,  by  which  he  means  the 
things,  of  which  it  disposes  ;  and  he  affirms,  in  respect 


1  Burgundus,  Tract.  4,  n.  8,  p.  105,  lOG. 


360  CONFLICT   OF   LAWS.  [CH.  Vni. 

to  the  matter,  that  the  law  of  the  situation  of  the  pro- 
perty ought  to  govern.  CcBterum,  id  sciamus,  coiitradus, 
ex  parte  materia  utiKs  sit,  vel  inutilis,  ad  leges,  qiice,  de 
quihiis  tractatiir,  impressce  sunt,  hoc  est,  ad  consuetiidinem 
situs  resp)iciemiis}  He  applies  the  same  rule  to  quasi 
contracts,  as  to  express  contracts ;  Idem  in  quasi  con- 
t7%ictihus,  quod  in  contradihus  oltinet? 

§  238.  Hertius  has  laid  down  three  general  rules 
upon  the  subject  of  the  operation  of  foreign  law.^  The 
first  is,  that,  when  the  law  respects  the  person,  the  law 
of  the  country  to  which  the  party  is  a  subject,  is  to  be 
followed.  Quando  lex  in  personam  dirigitiir,  frsjnciendiim 
est  ad  leges  civitatis,  quce  personam  lidbet  suhjectam.^  Se- 
condly, when  the  law  respects  things,  the  law  of  the 
situs  is  to  govern,  wherever,  and  by  whomsoever  the  act 
may  be  celebrated.  Si  Lex  dirccto  rei  imponitur,  ea  locum 
Jmbet,  uUcunque  etiam  locorum  et  a  quocunque  actus  celehre- 
tur.^  Thirdly,  when  the  law  imposes  any  form  in  the 
transaction  of  the  business  [actus),  the  law  of  the  place 
where  it  is  transacted,  is  to  govern,  and  not  the  law  of 
the  domicil  of  the  parties,  or  of  the  place  where  the 
property  is  situate.  >S^/  Lex  actui  formam  dot,  inspicien- 
dus  est  locus  actus,  non  domicilii,  non  rei  sitce.^  This  last 
rule,  in  an  especial  manner,  he  applies  to  contracts,  even 


1  Burgundus,  Tract.  4,  n.  8,  9. 

2  Burgundus,  Tract.  5,  n.  1.  See  also  2  Boullenois,  Observ.  46,  p.  450 
to  p.  454,  where  he  has  given  a  summary  of  the  doctrine  of  Burgundus. 
Burgundus,  in  exemplifying  what  he  means  by  the  matter  of  the  contract, 
where  the  law  of  the  situs  governs,  evidently  confines  himself  to  real  es- 
tate, or  immovable  property.  See  Everhardus,  Consil.  78,  n.  18,  19,  p. 
207  ;  post,  (}  299  c. 

3  Ante,  ^  30, 

4  1  Hertii  Opera,  De  Collis.  Leg.  p.  123,  §  8  ;  Id.  p.  175,  edit.  1716. 

5  1  Hertii  Opera,  De  Collis.  Leg.  p.  125,  ^  9 ;  Id.  p.  177,  edit.  1716. 

6  1  Hertii  Op^ra,  De  Collis.  Leg.  p.  126,  ^  10  ;  Id.  p.  179,  edit.  1716. 


CH.  viil]  foreign  contracts.  361 


when  they  regard  property  situated  in  a  foreign  coun- 
try.     Valet  ettamsi,  hona  in  alio  territorio  sunt  sita} 

§  239.  Huberus  lays  down  the  following  doctrine. 
All  business  and  acts  done  in  court,  and  out  of  court, 
(or,  as  we  should  say,  'm.  i^ais,  or  judicial,)  whether  testa- 
mentary, or  inter  vivos,  regularly  executed  in  any  place 
according  to  the  law  of  that  place,  are  valid  everywhere, 
even  in  countries  where  a  different  law  prevails,  and 
where,  if  transacted  in  the  like  manner,  they  would 
have  been  invalid.  On  the  other  hand,  business  and 
acts  executed  in  any  place  contrary  to  the  law  of  that 
place  where  they  are  executed,  as  they  are  in  their  origin 
invalid,  never  can  acc[uire  any  validity.  And  this  rule 
applies  not  only  to  persons  who  are  domiciled  in  the 
place  of  the  contract,  but  to  those  who  are  commorant 
there.  There  is  this  exception,  however,  to  be  under- 
stood, that  if  the  rulers  of  another  people  would  be 
affected  with  any  notable  inconvenience  thereby,  they 
are  not  bound  to  give  any  effect  to  such  business  and 
transactions.  Inde  flidt  Jicec  Positio :  Cimcta  negotia  et 
acta,  tarn  in  judicio,  quam  extra  judicium,  sen  mortis  causa 
sive  inter  vivos,  secundum  jus  ccrti  loci  rite  celebrata,  vatent, 
etiam  uli  diversa  juris  ohservatio  viget,  ac  %d)i  sic  inita,  quem- 
admodum  facta  sunt,  non  valcrent.  E  contra,  negotia  et 
acta  certo  loco  contra  leges  ejus  loci  celchrata,  cum  siiit  ah 
initio  invalida,  nusquam  vcdere  possunt ;  idque  non  modo 
resjpectu  Jiominum,  qui  in  loco  contractus  hdbent  domicilium, 
sed  et  ilhrum,  qui  ad  tempiis  ibidem  commorantur.  Sub 
hac  tamen  excejjtione  ;  si  rectores  alterius  iwpull  exinde  no- 
tabili  incommodo  afficerentur,  ut  hi  tatibus  actis  atque  nego- 


1  1  Hertii  Opera,  De  Collis.  Leg.  ^  4,  p.   I'^O,  >^  10,  edit.  1737  ;  Id. 
p.  179,  180,  edit.  1716  ;  post,  371  a. 

CONFL,  31 


362  CONFLICT    OF   LAWS.  [CH.  VIIL 

iiis  usum  effedumque  dare  non  tcneantur,  secundum  iertii 
axiomatis  Umitationem}  He  applies  the  same  doctrine 
indiscriminately  to  testamentary  acts,  to  acts  inter  vivos, 
and  to  contracts.  Quod  de  testamcntis  liahidmiis,  hewn 
etiam  Jiahet  in  aetibus  inter  vivos.  Proinde  contractus  cele- 
hrati  secundum  jus  loci,  in  quo  contrahmtur,  iihique  tarn  in 
jure,  quam  extra  judicium,  etiam  ubi  hoc  modo  celehrati  non 
valerent,  sustincntur  :  idque  non  tantum  de  forma,  sed  etiam 
de  materia  contractus  affirmandum  est?  He  adds,  that 
the  place  where  a  contract  is  entered  into,  is  not  to  be 
precisely  regarded ;  that  if  the  parties  had  another 
country  in  view  in  making  the  contract,  that  ought  not 
rather  to  be  considered.  Verum  tamen  non  ita  jwacise 
respiciendus  est  locus,  in  quo  contractus  est  initus,  id,  si  jxir- 
tes  alium  hewn  respexerint,  ille  non  potius  sit  considerandus? 
But  here  the  same  restriction  is  to  apply,  that  no  injury 
arise  thereby  to  the  citizens  of  the  foreign,  country  in 
regard  to  their  own  rights.  Datur  ct  alia  Umitationis 
scBpe  dictcE  applicatio  in  Jioc  articido  ;  Effecta  contractuum 
certo  hco  initorum,  pro  jure  hci  ilUus  cdihi  quoque  ohser- 
vantur,  si  nidlum  hide  civihus  alienis  creetur  prczjudicium,  in 
jure  sihi  qucesito  ;  ad  quod  Potestas  alterius  hci  non  tene- 
tur,  neque  ^^otest  extendere  jtis  diversi  terntorii.^  And  he 
deduces  the  following  general  conclusion,  that  if  the 
law  of  a  foreign  countr}^  is  in  conflict  with  the  law  of 
our  own  country,  in  which  a  contract  is  also  entered 
into,  conflicting  with  another  contract,  which  is  entered 
into  elsewhere,  in  such  a  case  our  own  law  ought  to 
prevail,  and  not  the  foreign  law.     Ampliamus  hanc  regu- 


i  2  Huberus,  De  Confl.  Leg.  Lib.  1,  lit.  3,  ^  3. 

2  2  Huberus,  De  Confl.  Leg.  1,  tit.  3,  ^  5,  7,  8,  9. 

3  2  Huberus,  De  Confl.  Leg.  Lib.  1,  tit.  3,  ^  10  ;  post,  ^  281,  299. 

4  2  Huberus,  Lib.  1,  tit.  1,  ^  11. 


CH.  VIII.]  FOREIGN   CONTRACTS.  363 

lam  tali  extensione.  Si  jus  loci  in  alio  imperio  pugnet  cum 
jure  nostrcE  civitatis,  in  qud  contractus  etiam  initus  est,  con- 
fligens  cum  eo  contractu,  qui  alibi  celchratus  est,  magis  est, 
id  jus  nostrum,  cjuam  jus  alieaum,  servcmus} 

§  239  a.  Bartoliis,  on  the  subject  of  contracts  be- 
tween foreigners  in  another  country,  has  expressed  him- 
self to  the  following  effect ;  That  we  are  to  distin- 
guish whether  the  question  is  (1.)  as  to  the  law  or  cus- 
tom, which  regulates  the  solemnities  of  the  contract ; 
or  (2.)  as  to  the  institution  of  the  remedy;  or  (3.)  as 
to  those  things,  which  belong  to  the  jurisdiction,  in  exe- 
cuting the  contract.  In  the  first  case,  the  law  of  the 
place  of  the  contract  is  to  govern  ;  in  the  second  case, 
the  law  of  the  place  where  the  suit  is  instituted.  But 
in  the  third  case,  as  to  those  things  which  arise  from 
the  nature  of  the  contract  at  the  time  when  it  was 
made,  or  those  which  arise  afterwards  on  account  of 
negligence  or  delay,  the  law  of  the  place  of  the  contract 
is  to  govern.  Et  primo,  Qucero  quid  de  contractihus  ? 
Pone  contractum  celehratum  per  aliquem  forensem  in  hac 
civitate ;  litigium  ortum  est,  et  agitatur  lis  in  loco  originis 
contrahentis  ;  cujus  loci  Statuta  deleni  servari,  vel  spectari? 
Distingue,  aut  loquimur  de  Statuto,  aut  de  cmisuetudine,  qim 
respiciunt  ipsius  contractus  solemnitatem,  aut  litis  orckna- 
tionem,  aut  de  Ms  cpice  pertinent  ad  jiirisdictionem  ex  ipso 
contractu  evenientis  exeeutionis.  Primo  casu,  inspicitiir  lo- 
cus contractus.  Secundo  casu,  aut  qurnris  de  his,  qua  perti- 
net  ad  litis  ordinationem,  et  inspicitur  locus  judicii.  Aut  de 
his  quce  2')crtincnt  ad  ipsius  litis  decisionem  ;  et  tunc,  aut  de 
his,  quce  oriuntur  secundum  ip)sius  contractus  ncduram  tem- 
pore contractus,  aut  de  his,  quce  oriuntur  ex  post  facto  prop- 


i  2  Huberus,  Lib.  1,  tit.  3,  ^  11. 


364  CONFLICT    OF   LAWS.  [CH.  YIII- 

ter  negligentiam,  vel  moram.     Primo  casu,  inspicitiir  hens 
contractus} 

§  240.  Boullenois  has  discussed  this  subject  in  a 
most  elaborate  manner ;  and  has  laid  down  a  number 
of  rules,  which  are  entitled  to  great  consideration.^ 
First.  The  law  of  the  place,  where  a  contract  is  entered 
into,  is  to  govern,  as  to  every  thing  which  concerns 
the  proof  and  authenticity  of  the  contract,  and  the 
faith  which  is  due  to  it,  that  is  to  say,  in  all  things 
which  regard  its  solemnities  or  formalities.-^  Secondly. 
The  law  of  the  place  of  the  contract  is  generally  to 
govern  in  every  thing  which  forms  the  obligation  of  the 
contract  {le  lien  die  contrat,)  or  what  is  called  vinculum 
ohligationis}  Thirdly.  The  law  of  the  place  of  the  con- 
tract is  to  govern  as  to  the  intrinsic  and  substantive 
form  of  the  contract.^  Fourthly.  When  the  law  has 
attached  certain  formalities  to  the  things  themselves, 
which  are  the  subject  of  the  contract,  the  law  of  their 
situation  is  to  govern.^  This  rule  is  applicable  to  con- 
tracts respecting  real  estate.  Fifthly.  When  the  law 
of  the  place  of  the  contract  admits  of  dispositions  or 
acts,  which  do  not  spring  properly  from  the  nature  of 
the  contract,  but  have  their  foundation  in  the  state  and 
condition  of  the  person,  there  the  law  which  regulates 
the  person,  and  upon  which  his  state   depends,  is  to 


1  Bartol.  Comment,  ad  Cod.  Lib.  1,  tit.  1,  1.  1,  n.  13,  cited  also  2  Boul- 
lenois, Observ.  44,  p.  455,  456. 

2  2  Boullenois,  Observ.  46.  p.  445  to  p.  538.  —  Mr.  Henry  has  laid  down 
the  first  eight  rules  of  Boullenois,  as  clear  law,  without  the  slightest 
acknowledgment  of  the  source  whence  they  are  taken.  In  fact,  his  Trea- 
tise is  in  substance  taken  from  Boullenois,  whose  name,  however,  occurs 
only  once  or  twice  in  it. 

3  2  Boullenois,  Observ.  46,  p.  458.  ^  Ibid. 
o  2  Boullenois,  Observ.  46,  p.  467.  6  Ibid. 


CH.  VIII.]  FOREIGN   CONTRACTS.  365 

govern.^  Sixthly.  In  questions,  whether  the  rights 
which  arise  from  the  nature  and  time  of  the  contract, 
are  lawful  or  not,  the  law  of  the  place  of  the  contract  is 
to  govern.-  Seventhly.  In  questions  concerning  mova- 
ble property,  of  which  the  delivery  is  to  be  instantly 
made,  the  law  of  the  place  of  the  contract  is  to  govern.' 
Eighthly.  If  the  rights,  which  arise  to  the  profit  of  one 
of  the  contracting  parties,  in  flxct  arise  under  a  contract 
valid  in  itself,  and  not  subject  to  rescision,  but  they 
arise  from  a  new  cause  purely  accidental,  and  ex  post 
facto  ;  in  this  case,  the  law  of  the  place  where  these 
rights  arise  is  to  govern  unless  the  parties  have  other- 
wise stipulated.^  Ninthly.  These  rules  are  to  govern 
equally,  whether  the  contestation  be  in  a  foreign  tri- 
bunal, or  in  a  domestic  tribunal,  having  proper  jurisdic- 
tion over  the  controversy.^  Tenthly.  In  questions 
upon  the  true  interpretation  of  any  clauses  in  a  con- 
tract, or  in  a  testament,  the  accompanying  circum- 
stances ought  ordinarily  to  decide  them.*' 

§  241.  Without  entering  farther  into  the  examina- 
tion of  the  opinions  and  doctrines  of  foreign  jurists,'^  (a 
task  which  would  be  almost  endless,)  we  shall  now 
proceed  to  the  consideration  of  those  doctrines,  touch- 
ing contracts  made  in  foreign  countries,  which  appear 
to  be  recognized  and  settled  in  the  jurisprudence  of 
the  common  law.     The  law  which  is  to  govern  in  rela- 


1  2  Boullenois,  Observ.  46,  p.  467;  post,  ^  437. 

2  2  Boullenois,  Observ.  46,  p.  472.  3  id,  Observ.  n.  46,  p.  475. 
4  2  Boullenois,  Observ.  46,  p.  477.  5  Id.  Observ.  46,  p.  489. 

6  2  Boullenois,  Observ.  46,  p.  489.    See  also  Fcelix,  Conflict,  des  Lois, 
Revue,  Elrang.  et  Franc.  Tom.  7,  1840,  ^  39,  p.  344  to  p.  316. 

'  The  learned  reader  who   wishes    for   farther  instruction   as   to  the 
opinions  of  foreign  jurists  on  all  these  points,  will  find  many  of  them  col- 
lected in  2  Boullenois,  Observ.  46,  from  p.  458  to  p.  538. 
31* 


366  CONFLICT    OF   LAWS.  [CH.  VIII. 

tion  to  the  capacity  of  the  parties  to  enter  into  a  con- 
tract, has  been  already  fully  considered.^  It  has  been 
shown,  that,  although  foreign  jurists  generally  hold, 
that  the  law  of  the  domicil  ought  to  govern  in  regard 
to  the  capacity  of  persons  to  contract ;  ^  yet,  that  the 
common  law  holds  a  different  doctrine,  namely,  that  the 
Lex  loci  contractus  is  to  govern.^ 

§  242.  (1.)  Generally  speaking,  the  validity  of  a 
contract  is  to  be  decided  by  the  law  of  the  place,  where 
it  is  made,  unless  it  is  to  be  performed  in  another 
country,  for,  as  we  shall  presently  see,  in  the  latter 
case,  the  law  of  the  place  of  performance  is  to  govern."^ 
If  valid  there,  it  is  by  the  general  law  of  nations,  jiu^e 
gentium,  held  valid  everywhere,  by  the  tacit  or  implied 
consent  of  the   parties.^      The   rule   is   founded,   not 


1  Ante,  ^  51  to  79. 

2  Ante,  ^  51  to  79.  —  In  addition  to  the  foreign  authorities  already- 
cited,  we  may  add  that  of  Cochin  and  D'Aguesseau.  The  former  says, 
that  ihe  subjects  of  the  king  of  France  are  always  subjects,  and  they  can- 
not break  the  bonds,  which  attach  them  to  his  authority ;  and  parties, 
contracting  in  a  foreign  country,  cannot  possess  any  capacity  to  contract, 
but  according  to  the  law  of  their  own  country.  It  is  a  personal  law, 
which  follows  them  everywhere.  Cochin,  QEuvres,  Tom.  1,  p.  153,  154; 
Id.  545,  4to.  edit.;  lb.  Tom.  4,  p.  555,  4to.  edit.  "When"  (says 
D'Aguesseau)  "  the  question  is,  as  to  an  act  purely  personal,  we  con- 
sider only  the  law  of  the  domicil.  That  alone  commands  all  persons  who 
are  subject  to  it.  Other  laws  cannot  make  those  capable,  or  incapable, 
who  do  not  live  within  their  reach.  And  this  is  what  Bartolus  intended 
to  remark,  when  ho  said,  Statutum  non  potest  habilitare  personam  sibi 
non  subjcclam."     D'Aguesseau,  CEuvres,  Tom.  4,  p.  639,  4to.  edit. 

3  See  ante,  ch.  4,  §  51  to  54  ;  Id.  ^  100  to  106.  See  also  Male  v. 
Roberts,  3  Esp.  R.  163;  Thompson  v.  Ketcham,  8  Johns.  R.  189; 
Liverm.  Diss.  p.  34,  ^  21,  p.  35  ;  Id.  ^  22,  23,  24,  p.  38  ;  Id.  ^  26,  27, 
p.  40 ;  Id.  ^  31,  p.  42  ;  Id.  ^  33,  p.  43,  ^  35  ;  Andrews  v.  His  Creditors, 
11  Louis.  R.  464,  476. 

4  Post,  §  280. 

5  Pearsall  v.  Dwight,  2  Mass.  R.  88,  89.  See  Casaregis,  Disc.  179, 
§1,2;  Willing  V.  Conseequa,  1  Peters,  R.  317  ;   2  Kent,  Comm.  Lect. 


CH.  VIII.]  FOREIGN   CONTRACTS.  367 

merely  in  the  convenience,  but  in  the  necessities  of 
nations ;  for  otherwise,  it  would  be  impracticable  for 
them  to  carry  on  an  extensive  intercourse  and  com- 
merce with  each  other.  The  whole  system  of  agencies, 
of  purchases  and  sales,  of  mutual  credits,  and  of  trans- 
fers of  negotiable  instruments,  rests  on  this  foundation ; 
and  the  nation  which  should  refuse  to  acknowledge  the 
common  principles,  would  soon  find  its  whole  com- 
mercial intercourse  reduced  to  a  state,  like  that,  in 
which  it  now  exists  among  savage  tribes,  among  the 
barbarous  nations  of  Sumatra,  and  among  other  portions 
of  Asia,  washed  by  the  Pacific.  Jus  autem  gentium 
(says  the  Institute  of  Justinian)  omni  Jmmano  generi 
commune  est ;  nam,  usu  exigente,  et  humanis  necessitatihus, 
gentes  humance.  jura  qucedam  sibi  constituenint.  Et  ex  Jioc 
jure  gentium,  omnes  pcne  contractus  introducii  sunt,  ut 
emptio  et  venditio,  locatio  et  conductio,  societas,  depositum, 
mutiium,  et  alii  innumeraUles}  No  more  forcible  applica- 
tion can  be  propounded  of  this  imperial  doctrine,  than 
to  the  subject  of  international  private  contracts.^     In 


39,  p.  457,  458,  3d  edit. ;  De  Sobry  v.  De  Laistre,  2  Harr.  &  Johns.  R. 
193,  221,  228  ;  Smith  v.  Mead,  3  Connect.  R.  253;  Medbury  v.  Hopkins, 
3  Connect.  R.  472;  Houghton  v.  Page,  2  N.  Hamp.  R.  42;  Dyer  u. 
Hunt,  5  N.  Hamp.  R.  401  ;  Erskine's  Inst.  B.  3,  tit.  2,  §  39,  40,  41, 
p.  514  to  p.  516;  Trimbey  v.  Vignier,  1  Bing.  New  Cas.  151,  159; 
S.  C.  4  Moore  &  Scott,  G95 ;  Andrews  v.  Pond,  13  Peters,  R.  65 ;  An- 
drews V.  His  Creditors,  11  Louis.  R.  465  ;  Fergusson  v.  Fyffe,  8  Clark 
&  Finn.  R.  121  ;  post,  ^  316  a  ;  Bayley  on  Bills,  ch.  (A.)  Sth  edit,  by  F. 
Eayley,  p.  78  ;  Id.  Amer.  Edit,  by  Phillips  and  Sewell,  18.36,  p.  78  to  p. 
86  ;  1  Burge,  Comment,  on  Col.  and  For.  Law,  Pt.  1,  ch.  1,  p.  29,  30  ; 
Whister  v.  Stodder,  8  Martin,  R.  95;  Bank  of  U.  States  v.  Donally, 
8  Peters,  R.  361,  372  ;  Wilcox  v.  Hunt,  13  Peters,  R.  378,  379  ;  French 
I'.  Hall,  9  N.  Ilamp.  R.  137. 

1  1  Inst.  Lib.  1,  tit.  2,  ^  2, 

2  2  Kent,  Comrn.  Lect.  39,  p.  454,  455,  and  note,  3d  edit.  ;  10  Toul- 
lier,  art.  80,  note;  Pardessus,  Droit  Comm.  A'^ol.  5,  art.  1482,  Charters  v. 
Cairnes,  16  Martin,  R.  1. 


368  CONFLICT    OF   LAWS.  [CH.  VIIL 

this,  as  a  general  principle,  there  seems  a  universal  con- 
sent of  all  courts  and  jurists,  foreign  and  domestic.^ 

§  242  a.  Illustrations  of  this  general  doctrine  may 
be  derived  from  cases,  which  have  actually  occurred  in 
judgment.  Thus,  for  example,  where  a  bill  of  ex- 
change was  made  and  indorsed  in  blank  in  France,  and 
the  holder  afterwards  sued  the  maker  in  England,  a 
question  arose,  whether,  upon  such  an  indorsement  in 
blank,  without  following  the  formalities  prescribed  by 
the  Civil  Code  of  France,  the  indorsement  passed  the 
right  of  property  to  the  holder;  and  it  being  found, 
that  it  did  not,  by  the  law  of  France,  the  Court  held, 
that  no  recovery  could  be  had  by  the  hokler  upon  the 
note  in  an  English  Court.  The  Court  on  that  occasion 
said,  that  the  question,  as  to  the  transfer,  was  a  ques- 
tion of  the  true  interpretation  of  the  contract,  and  was 
therefore  to  be  governed  by  the  law  of  France,  where 
the  contract  and  indorsement  were  made.^ 


1  The  cases  which  support  this  doctrine  are  so  numerous  that  it  would 
be  a  tedious  task  to  enumerate  them.  They  may  generally  be  found  col- 
lected in  the  Digests  of  the  English  and  American  Reports,  under  the 
head  of  Foreign  Law,  or  Lex  Loci.  The  principal  part  of  them  are  col- 
lected in  4  Covven,  R.  510,  note  ;  and  in  2  Kent,  Comm.  Lect.  39,  p.  457, 
et  seq.  in  the  notes.  See  also  Fonblanque  on  Eq.  B.  5,  ch.  ^  6,  note  (t.) 
p.  443  ;  Bracket  v.  Norton,  4  Connect.  R.  517;  Medbury  v.  Hopkins, 
3  Connect.  R.  472  ;  Smith  v.  Mead,  3  Connect.  R.  253;  De  Sobry  u. 
De  Laislre,  2  Harr.  &  Johns.  R.  193,  221,  228  ;  Trasher  v.  Everhart, 
3  Gill  &  Johns.  R.  234.  The  foreign  jurists  are  equally  full,  as  any 
one  will  find  upon  examining  the  most  celebrated  of  every  nation.  They 
all  follow  the  doctrine  of  Dumoulin.  "In  concernentibus  contractibus,  et 
emergentibus  tempore  contractus,  inspici  debet  locus,  in  quo  contrahitur." 
Molin.  Comment,  ad  Consuet.  Paris,  tit.  1,  §  12,  Gloss,  n.  37,  Tom.  1, 
224;  post,  ^  260,  ^  300  d.  See  Bouhier,  ch.  21,^190;  2  Boullenois, 
Observ.  46,  p.  458.  Lord  Brougham,  in  Warrender  v.  Warrender, 
9  Bligh,  R.  110,  made  some  striking  remarks  on  this  subject,  which  have 
been  already  cited,  ante,  %  226  b.  note. 

2  Trimbey  v.  Vignier,  1  Bing.  New  Cases,  151, 159  ;  post,  ^  267,  270. 


CH.  viil]  foreign  contracts.  369 

§  243  (2.)  The  same  rule  applies,  vice  versd,  to  the 
invalidity  of  contracts ;  if  void,  or  illegal  by  the  law 
of  the  place  of  the  contract,  they  are  generally  held 
void  and  illegal  everywhere/  This  would  seem  to  be 
a  principle  derived  from  the  very  elements  of  natural 
justice.  The  Code  has  expounded  it  in  strong  terms. 
Nullum  enim  pactum,  niillam  conventionem,  iiUum  contract- 
um,  inter  cos  vidcri  volumus  siihsecutum,  qui  contraJiunt  lege 
contrahcre  'proUhente?  If  void  in  its  origin,  it  seems 
difficult  to  find  any  principle,  upon  which  any  subse- 
quent validity  can  be  given  to  it  in  any  other  country. 

§  244.  (3.)  But  there  is  an  exception  to  the  -rule,  as 
to  the  universal  validity  of  contracts,  which  is,  that  no 
nation  is  bound  to  recognize  or  enforce  any  contracts, 
which  are  injurious  to  its  own  interest,  or  to  those  of  its 
own  subjects.^  Huberus  has  ex{)ressed  it  in  the  follow- 
ing terms;  Quatenus  niJiil  potestati  mit  jiiri  alteriiis  impe- 
rantis  ejiisqiie  civium,  prcejudicetur  ;  ^  and  ]Mr.  Justice  Mar- 
tin still  more  clearly  expresses  it,  in  saying,  that  the 
exception  applies  to  cases,  in  which  the  contract  is  im- 


J  Huberus,  Lib.  1,  tit.  3,  De  Confl.  Leg.  §  3,  5  ;  Van  Reimsdyk  v. 
Kane,  1  Gallis.  R.  275  ;  Pearsall  v.  Dvvight,  2  Mass.  R.  88,  89  ;  Touro  v. 
Cassin,  1  Nott  &  McCord,  R.  173  ;  De  Sobry  v.  De  Laistre,  2  Harr. 
&  Johns.  R.  193,  221,  225  ;  Houghton  v.  Paige,  2  N.  Hamp.  R.  42  ; 
Dyer  v.  Hunt,  5  N.  Hamp.  R.  401 ;  Van  Schaik  v.  Edwards,  2  Johns. 
Cas.  355;  Robinson  tJ.  Bland,  2  Burr.  R.  1077;  Burrows  v.  Jeraino, 
2  Str.  732  ;  Alves  v.  Hodgson,  7  T.  R.  237;  2  Kent,  Comra.  Lect.  39, 
p.  457,  458,  3d  edit.  ;  La  Jeune  Eugenie,  2  Mason,  R.  459  ;  Andrews  v. 
Pond,  13  Peters,  R.  65,  78. 

2  Code,  Lib.  1,  tit.  14,  I.  5. 

^  Greenwood  v.  Curtis,  6  Mass.  R.  37G,  379  ;  Blanchard  v.  Russell, 
13  Mass.  R.  1,6;  Whiston  v.  Stodder.  8  Martin,  R.  95 ;  De  Sobry  v. 
De  Laistre,  2  Harr.  &  Johns.  R.  193,  228  ;  Trasher  v.  Everhart,  3  Gill 
&  Johns.  R.  234  ;  3  Surge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch. 
20,  p.  779  ;  post,  ^  348  to  351 ;  Andrews  v.  Pond,  13  Peters,  R;  65,  78. 

4  Huberus,  Lib.  1,  tit.  3,  De  Conflict.  Leg,  §  2. 


370  CONFLICT    OF   LAWS.  [CH.  VIII. 

moral  or  unjust,  or  in  which  the  enforcing  it  in  a 
state  would  be  injurious  to  the  rights,  the  interest,  or 
the  convenience  of  such  state  or  its  citizens.'  This  ex- 
ception results  from  the  consideration,  that  the  authority 
of  the  acts  and  contracts  done  in  other  States,  as  well 
as  the  laws,  by  w^hich  they  are  regulated,  are  not,  ino- 
pio  vigore,  of  any  efficacy  beyond  the  territories  of  that 
State ;  and,  whatever  effect  is  attributed  to  them  else- 
where, is  from  comity,  and  not  of  strict  right.^  And 
every  independent  community  will,  and  ought  to  judge 
for  itself,  how  far  that  comity  ought  to  extend.^  The 
reasonable  limitation  is,  that  it  shall  not  suffer  preju- 
dice by  its  comity.'*  This  doctrine  has  been  on  many 
occasions  recognized  by  the  Supreme  Court  of  Louisiana. 
On  a  recent  occasion  it  was  said  by  the  Court ;  "  By 
the  comity  of  nations'-  a  practice  has  been  adopted, 
by  which  courts  of  justice  examine  into,  and  enforce 
contracts  made  in  other  States,  and  carry  them  into 
effect  according  to  the  laws  of  the  place,  where  the  trans- 
action took  its  rise.  This  practice  has  become  so  gene- 
ral in  modern  times,  that  it  may  be  almost  stated  to 
be  now  a  rule  of  international  law,  and  it  is  subject 
only  to  the  exception,  that  the  contract,  to  which  aid 
is  required,  should  not,  either  in  itself  or  in  the  means 
used  to  give  it  effect,  work  an  injury  to  the  inhabitants 
of  the  country  where  it  is  attempted  to  be  enforced."  ^ 


1  Whiston  V.  Stodder,  8  Martin,  R.  95,  97. 

2  Ante,  ^  7,  8,  18,  20,  22,  23,  36.  3  Ibid. 

4  Ante,  \  25,  27,  29 ;  Huberus,  Lib.  1,  tit.  3,  De  Conflict.  Leg.  ^  2,  3, 
5 ;  Trasher  v.  Everhart,  3  Gill,  and  Johns.  R.  234  ;  Greenwood  v.  Curtis, 
6  Mass.  R.  378  ;  2  Kent,  Comm.  Lect.  39,  p.  457,  3d  edit. ;  Kentucky  i'. 
Bassford,  6  Hill,  N.  Y.  R.  526  ;  Pearsall  v.  Dwight,  2  Mass.  R.  88,  89  ; 
Eunomus,  Dial.  3,  ^  67. 

5  Mr.  Justice  Porter,  inOhioInsur.  Company  v.  Edmonson,  5  Louis.  R. 
295,  299,  300. 


CH.  VIII.]  FOREIGN    CONTRACTS.  371 

Mr.  Justice  Best  (afterwards  Lord  Wynford)  on  another 
occasion  with  great  force  said,  that  in  cases  turning  upon 
the  comity  of  nations  [comUas  inter  commwiitates,)  it  is 
a  maxim,  that  the  comity  cannot  prevail  in  cases  where 
it  violates  the  law  of  our  own  countiy,  or  the  law  of 
nature,  or  the  law  of  God.  Contracts,  therefore,  which 
are  in  evasion  or  fraud  of  the  laws  of  a  country,  or  of 
the  rights  or  duties  of  its  subjects,  contracts  against 
good  morals,  or  against  religion,  or  against  public  rights, 
and  contracts  opposed  to  the  national  policy  or  national 
institutions,  are  deemed  nullities  in  every  country, 
affected  by  such  considerations ;  although  they  may  be 
valid  by  the  laws  of  the  place,  where  they  are  made.-^ 
§  245.  Indeed,  a  broader  principle  might  be  adopted ; 
and  it  is  to  be  regretted  that  it  has  not  been  univer- 
sally adopted  by  all  nations,  in* respect  to  foreign  con- 
tracts, as  it  has  been  in  respect  to  domestic  contracts, 
that  no  man  ought  to  be  heard  in  a  court  of  justice  to 
enforce  a  contract,  founded  in  or  arising  out  of  moral 
or  political  turpitude,  or  in  fraud  of  the  just  rights  of 
any  foreign  nation  whatsoever.-  The  Roman  law  con- 
tains an  affirmation  of  this  wholesome  doctrine.  Pacta, 
qiicB  contra  leges  constitidionesque,  vel  contra  lonos  mores 
fiiint,  niillam  vim  habere,  induhitati  juris  est?  Pacta,  quce 
turjjem  caiisam  continent,  non  sunt  ohservancla^  Unfortu- 
nately from  a  very  questionable  subserviency  to  mere 
commercial  gains,  it  has  become  an  established  formu- 


'  Forbes  v.  Cochrane,  2  Barn.  &  Cress.  R.  448,  471. 

2  Armstrong  v.  Toler,  11  Wheaton,  R.  258,  2G0 ;  Chitty  on  Bills,  (8lli 
edit.)  1833,  p.  143,  note  ;  Boucher  v.  Lawson,  Cas.  Temp.  Hard.  84,  89, 
194  ;  rianche  v.  Fletcher,  Doug.  R.  250;  post,  ^  255,  257. 

3  Code,  Lib.  2,  tit.  3,  1,  6. 

4  Dig.  Lib.  2,  tit.  14,  1.  27,  ^  4.  See  also  1  Chitty  on  Comm.  and 
Manuf.  ch.  4,  p.  82,  83. 


372  CONFLICT    OF    LAWS.  [CH.  VIIL 

laiy  of  the  jurisprudence  of  the  common  law,  that  no 
nation  will  regard  or  enforce  the  revenue  laws  of  any 
other  country ;  and  that  the  contracts  of  its  own  sub- 
jects, made  to  evade  or  defraud  the  laws  or  just  rights 
of  foreign  nations,  may  be  enforced  in  its  own  tribu- 
nals.^ Sound  morals  would  seem  to  point  to  a  very 
different  conclusion.  Pothier  has  (as  we  shall  presently 
see)  reprobated  the  doctrine  in  strong  terms,  as  incon- 
sistent with  good  faith,  and  the  just  duties  of  nations 
to  each  other.- 

§  246.  A  few  cases  may  serve  to  illustrate  the  ex- 
ceptions under  each  of  the  foregoing  heads.^  First, 
contracts,  which  are  in  evasion  or  fraud  of  the  laws  of 
a  particular  country.'*  Thus,  if  a  contract  is  made  in 
France,  to  smuggle  goods  into  America  in  violation  of 
our  laws,  the  contract  will  be  treated  by  our  courts  as 
utterly  void,  as  an  intended  fraud  upon  our  laws.^  And 
in  such  a  case,  brought  into  controversy  in  our  courts, 
it  will  be  wholly  immaterial,  whether  the  parties  are 
citizens  or  are  foreigners.  So,  if  a  collusive  capture 
and  condemnation  are  procured  in  our  courts  in  fraud 
of  our  laws  by  foreigners,  who  are  even  enemies  at  the 
time,  their  contract  for  the  distribution  of  the  prize 
proceeds  will  be  held  utterly  void  by  our  courts ; 
although  the  acts  are  a  mere  stratagem  of  war.     And 


1  See  Boucher  v.  Lawson,  Cas.  Temp.  Hard.  85,  89,  194  ;  post,  ^256, 
257. 

2  Post,  ^  257. 

3  Many  of  the  cases  upon  this  subject  will  be  found  referred  to  in  the 
argument  of  Armstrong  v.  Toler,  11  Wheaton,  R.  265,  266. 

■»  See  1  Bell,  Comrn.  ^233  to247,  p.  232  to  p.  240,  4th  edit.;  Id. 
p.  298  to  p.  314,  5lh  edit.  ;  Kames  on  Eq.  B.  3,  ch.  8,  ^  1. 

^  See  Holman  v.  Johnson,  Covvper,  R.  341  ;  Armstrong  v.  Toler,  II 
Wheaton,  R.  258 ;  Cambioso  v.  Maffit,  2  Wash.  Cir.  R.  98. 


CH.  VIII.]  FOREIGN   CONTRACTS.  373 

it  will  make  no  difference,  that  the  laws  have  since 
been  repealed,  or  that  the  war  has  since  ceased  ;  for  the 
contract,  being  clearly  in  fraud  of  the  laws  existing  at 
the  time,  the  execution  of  it  ought  not  to  be  enforced 
by  the  courts  of  the  country  whose  laws  it  was  de- 
signed to  evade. ^ 

§  247.  The  same  principle  applies,  not  only  to  con- 
tracts growing  immediately  out  of,  and  connected  with, 
an  illegal  transaction,  but  also  to  new  contracts,  if  they 
are  in  part  connected  with  the  illegal  transaction,  and 
grow  immediately  out  of  it.^  Thus,  for  example,  a 
man,  who,  under  a  contract  made  in  a  foreign  country, 
imports  goods  for  another,  by  means  of  a  violation  of 
the  laws  of  his  own  country,  is  disqualified  from  found- 
ing any  action  in  the  courts  of  that  country  upon  such 
illegal  transaction,  for  the  value,  or  for  the  freight  of 
the  goods,  or  for  other  advances  made  on  them.  He  is 
thus  justly  punished  for  the  immorality  of  the  act ;  and 
a  powerful  discouragement  from  the  perpetration  of  the 
act  is  thus  provided.^  And  if  the  importation  is  the 
result  of  a  scheme  to  consign  the  goods  to  a  friend  of 
the  owner,  with  the  security  of  the  former,  that  he  may 
protect  or  defend  them  for  the  owner,  in  case  they 
should  be  brought  into  jeopardy,  a  promise,  afterwards 
made  by  the  owner  to  such  friend,  to  indemnify  him  for 
his  advances  and  charges  on  account  of  any  proceed- 
ings against  the  property,  although  it  purports  to  be  a 
new  contract,  will  be  held  utterly  void,  as  constituting 


1  Hannay  v.  Eve,  3  Cranch,  R.  242.     See   Jaques  v.   Withy,    1   H. 
Black.  R.  65  ;  The  Springfield  Bank  v.  Merrick,  14  Mass.  R.  322. 

2  Armstrong  v.  Toler,  II  Wheat.  R.  2G1,  262.     See  Canaan  v.  Brice, 
3  Barn.  &  Aid.  179. 

3  Ibid. 

CONFL.  32 


374  CONFLICT    OP   LAWS.  '  [CH.  VIII. 

a  part  of  the  r^s  geda,  or  original  transaction.  It  will 
clearly  be  a  promise,  growing  immediately  out  of,  and 
connected  with,  the  illegal  transaction.^ 

§  248.  But  the  principle  stops  here,  and  is  not  ex- 
tended to  new  and  independent  transactions  after  the 
illegal  act.  If  the  new  contract  is  wholly  unconnected 
with  the  illegal  act,  and  is  founded  on  a  new  consider- 
ation, and  is  not  a  part  of  the  original  scheme,  it  is  not 
tainted  by  the  illegal  act,  although  it  may  be  known  to 
the  party  with  whom  the  contract  is  made.^  Thus, 
if,  after  the  illegal  act  is  accomplished,  a  new  contract 
(not  being  unlawful  in  itself)  is  made  by  the  importer 
for  a  sale  of  the  goods  to  a  retail  merchant,  and  the 
merchant  afterwards  sells  the  same  to  a  tailor,  or  to  a 
customer,  who  had  no  participation  whatsoever  in  the 
original  illegal  scheme,  such  new  contract  will  be  valid, 
although  the  illegality  of  the  original  importation  is 
known  to  each  of  the  vendees  at  the  time  when  he  en- 
tered into  the  new  contract.^ 

§  249.  It  will  make  no  diflerence,  that  such  new  and 
independent  contract  is  made  with  the  person  Avho  was 
the  contriver  and  conductor  of  the  original  illegal  act, 
if  it  is  wholly  disconnected  therefrom ;  for  a  new  con- 
tract, founded  on  a  new  consideration,  although  in  rela- 
tion to  property,  respecting  which  there  have  been  prior 
unlawful  transactions  between  the  parties,  is  not  in 
itself  unlawful.^     Thus,  if  A.  should,  in  a  foreign  coun- 


1  Armstrong  v.  Toler,  11  Wheat.  R.  261,  262,  See  Canaan  v.  Brice, 
3  Barn.  &  Aid.  179. 

2  Armstrong  v.  Toler,  11  Wheat.  R.  262,  268,  269.  In  this  case  the 
general  principles  applicable  to  the  question  of  illegality,  as  well  as  the 
authorities,  were  fully  discussed  and  considered  by  the  Court. 

3  Armstrong  r.  Toler,  11  Wheat.  R.  261. 

4  Armstrong  v.  Toler,  11  Wheat.  R.  262,  268,  269. 


CH.  VIII.]  FOREIGN   CONTRACTS.  375 

try,  during  war,  contrive  a  plan  for  importing  goods 
from  the  country  of  the  enemy  on  his  own  account,  by 
means  of  smuggling,  or  of  a  collusive  capture  ;  and 
goods  should  be  sent  in  the  same  vessel  by  B. ;  and  A. 
should,  upon  the  request  of  B.,  afterwards  become  sure- 
ty for  the  payment  of  the  duties,  or  should  afterwards 
undertake  to  become  answerable  for  the  expenses  on 
account  of  a  prosecution  for  the  illegal  importation,  or 
should  afterwards  advance  money  to  B.,  to  pay  these 
expenses  ;  any  such  act,  if  it  constituted  no  part  of  the 
original  scheme,  and  if  A.  was  not  concerned,  nor  in 
any  manner  instrumental  in  promoting  the  illegal  im- 
portation of  B.,  but  he  was  merely  engaged  in  a  similar 
illegal  transaction,  devising  the  plan  for  himself,  would 
be  deemed  a  new  contract  upon  a  valid  and  legal  con- 
sideration, unconnected  with  the  original  act,  although 
remotely  caused  by  it.^  Hence,  such  new  contract 
would  not  be  so  contaminated  by  the  turpitude  of  the 
offensive  act,  as  to  turn  A.  out  of  court,  when  seeking 
to  enforce  the  new  contract  in  the  courts  of  this  coun- 
try, although  the  illegal  introduction  of  the  goods  into 
the  country  was  the  consequence  of  the  scheme  pro- 
jected by  himself,  in  relation  to  his  own  goods.' 

§  250.  The  same  principle  may  be  illustrated  b}^  ano- 
ther example.  If  A.  should  become  answerable  for  ex- 
penses on  account  of  a  prosecution  for  the  illegal  im- 
portation, or  should  advance  money  to  B.,  to  enable 
him  to  pay  those  expenses ;  these  acts  would  constitute 
a  new  contract,  on  which  an  action  might  be  maintained 
in  our  courts,  if  it  constituted  no   part  of  the  original 


1  Armstrong  v.  Toler,  II  Wheat.  R.  262,  268,  269. 

2  Ibid. 


376  CONFLICT    OF   LAWS.  [CH.  VIII. 

scheme  for  the  illegal   importation,  but  it  was  subse- 
quent to,  and  independent  of  it.' 

§  251.  The  same  general  distinction  has  been  assert- 
ed in  many  cases,  which  have  undergone  a  legal  adju- 
dication. Thus,  in  a  case  where  goods  were  sold  in 
France  by  a  Frenchman  to  an  Englishman,  for  the 
known  purpose  of  being  smuggled  into  England,  it  was 
held,  that  the  Frenchman  could  maintain  a  suit  in  Eng- 
land for  the  price  of  the  goods,  upon  the  ground,  that 
the  sale  was  complete  in  France,  and  the  party  had  no 
connection  with  the  smuggling  transaction.  The  con- 
tract, (said  the  Court,)  is  complete,  and  nothing  is  left 
to  be  done.  The  seller,  indeed,  knows  what  the  buyer 
is  going  to  do  with  the  goods ;  but  he  has  no  concern 
in  the  transaction  itself.^  [So,  in  a  late  case  in  Massa- 
chusetts,^ (where  the  sale  of  lottery  tickets  is  prohibit- 
ed by  statute,)  it  was  held,  that  a  sale  in  New  York, 
where  such  sale  is  not  forbidden,  to  a  citizen  of  Massa- 
chusetts, is  not  invalid,  although  the  seller  knew  that 
the  purchaser  was  buying  to  sell  again  in  Massachu- 
setts, contrary  to  the  law  ;  and  the  sale  was  held  to  be 
made  in  New  York  although  the  proposal  was  first 
made  by  letter  from  the  State  of  Massachusetts.]  But, 
if  it  enters  at  all,  as  an  ingredient,  into  the  contract 
between  the  parties,  that  the  goods  shall  be  smuggled, 
or  that  the  seller  shall  do  some  act  to  assist  or  facili- 
tate the  smuggling,  such  as  packing  them  in  a  particu- 
lar way,  there,  the  seller  is  deemed  active,  and  the  con- 


1  Armstrong  v.  Toler,  11  Wheat.  R.  258,  260,  268  to  271.  But  see 
Canaan  v.  Brice,  3  Barn.  &  Aid.  179. 

2  Holman  v.  Johnson,  Cowp.  R,.  311  ;  Hannay  v.  Eve,  3  Cranch,  242. 
But  see  Pellicat  v.  Angell,  2  Cromp.  Mees.  &  Rose.  311  ;  post,  254,  and 
note. 

3  Mclntyre  v.  Parks,  3  Mete.  207. 


CH.  VIII.]  FOREIGN    CONTRACTS.  377 

tract  will  not  be  enforced.^     The  same  doctrine  has  ac- 
cordingly been  held  in  other  cases.~ 

§  252.  Huberus  puts  a  case  illustrative  of  the  same 
doctrine.  In  certain  places  (says  he)  particular  mer- 
chandise is  prohibited.  If  sold  there,  the  contract  is 
void.  But,  if  the  same  merchandise  is  sold  in  another 
place,  where  there  is  no  such  prohibition,  and  a  suit  is 
brought  upon  the  contract  in  the  place  where  the  pro- 
hibition exists,  the  buyer  will  be  held  liable,  {Emptor 
condemnabitur) ;  because  the  contract  therefor  was,  in 
its  origin,  valid.  But,  if  the  merchandise  is  sold  to  be 
delivered  in  the  other  place  where  it  is  prohibited,  the 
buyer  will  not  be  held  liable ;  because  such  a  contract 
is  repugnant  to  the  law  and  interest  of  the  country 
which  made  the  prohibition.^ 

§  253.  The  result  of  these  decisions  certainly  is,  that 
the  mere  knowledge  of  the  illegal  purpose  for  which 
goods  are  purchased,  will  not  affect  the  validity  of  the 
contfact  of  sale  of  goods,  intended  to  be  smuggled  into 
a  foreign  country,  even  in  the  courts  of  that  country  ; 
but  that  there  must  be  some  participation  or  interest  of 
the  seller  in  the  act  itself  It  is  difficult,  however,  to 
reconcile  this  doctrine  with  the  strong  and  masculine 
reasoning  of  Lord  Chief  Justice  Eyre  in  an  important 
case  upon  the  same  subject ;  reasoning,  which  has 
much  to  commend  it  in  point  of  sound  sense,  and  sound 


1  Waymell  v.  Reed,  5  T.  R.  599  ;  S.  C.  1  Esp.  R.  91  ;  Lightfoot  v. 
Tenant,  1  Bos.  &  Pull.  551  ;  Biggs  v.  Lawrence,  3  T.  R.  459  ;  Clugas 
V.  Penelula,  4  T.  R.  466  ;  Holman  v.  Johnson,  Cowp.  R.  341  ;  Brown  v. 
Duncan,  10  B.  &  C.  98;  post,  ^  254,  and  note. 

2  Ibid. 

3  Huber.  Lib.  1,  tit.  3,  De  Conflictu  Legura,  ^5;  S.  P.  Greenwood  v. 
Curtis,  6  Mass.  R.  378  ;  Executors  of  Cambioso  v.  Assignees  of  Moffat, 
2  Wash.  Cir.  R.  98. 

32* 


378  CONFLICT    OF   LAWS.  [CH.  VIIL 

morals.  "Upon  the  principles  of  the  common  law," 
(said  he,)  "the  consideration  of  every  valid  contract 
must  be  meritorious.  The  sale  and  delivery  of  goods, 
nay,  the  agreement  to  sell  and  deliver  goods,  is,  primd 
facie,  a  meritorious  consideration  to  support  a  contract 
for  the  price.  But  the  man  who  sold  arsenic  to  one, 
who,  he  knew,  intended  to  poison  his  wife  with  it, 
would  not  be  allowed  to  maintain  an  action  upon  his 
contract.  The  consideration  of  the  contract,  in  itself 
good,  is  there  tainted  with  turpitude,  which  destroys 
the  whole  merit  of  it.  I  put  this  strong  case,  because 
the  principle  of  it  will  be  felt  and  acknowledged  with- 
out further  discussion.  Other  cases,  where  the  means 
of  transgressing  a  law  are  furnished,  with  the  know- 
ledge that  they  are  intended  to  be  used  for  that  pur- 
pose, will  differ  in  shade  more  or  less  from  this  strong 
case ;  but  the  body  of  the  color  is  the  same  in  all.  No 
man  ought  to  furnish  another  with  the  means  of  trans- 
gressing the  law,  knowing  that  he  intended  to  Thake 
that  use  of  them."  ^  The  wholesome  morality  and  en- 
larged policy  of  this  passage  make  it  almost  irresistible 
to  the  judgment ;  and,  indeed,  the  reasoning  seems 
positively  unanswerable. 

§  254.  The  doctrine  of  I^ord  Chief  Justice  Eyre 
has  been  expressly  adopted  in  other  cases.  Thus,  on 
one  occasion,"  the  Court  of  King's  Bench  in  England 
held,  that  a  person  who  sold  drugs  to  a  brewer,  know- 
ing that  they  were  intended  to  be  used  in  the  brewing 
of  beer  contrary  to  an  Act  of  Parliament,  was  not  en- 
titled to  recover  the  money  due  upon  the  sale.  Lord 
Ellenborough  on  that  occasion  said ;   "  A  person,  who 


1  Lightfoot  V.  Tenant,  3  Bos.  &  Pull.  351,  356. 

2  Langton  v.  Hughes,  1  Maule  &  Selw.  593. 


CH.  viil]  foreign  contracts.  379 

sells  drugs  with  a  knowledge  that  they  are  meant  to 
be  so  mixed,  may  be  said  to  cause  or  procure,  quantum 
in  illo,  the  drugs  to  be  mixed.  So,  if  a  person  sell 
goods  with  a  knowledge,  and  in  furtherance  of  the 
buyer's  intention  to  convey  them  upon  a  smuggling- 
adventure,  he  is  not  permitted  by  the  policy  of  the 
law  to  recover  such  a  sale."  ^  And  the  other  members 
of  the  Court  concurred  in  that  opinion.  Mr.  Justice 
Bayley  added ;  "  If  a  principal  sell  articles  in  order  to 
enable  the  vendee  to  use  them  for  illegal  purposes,  he 
cannot  recover  the  price.  The  smuggling  cases,  which 
were  decided  on  that  ground,  are  very  familiar."  ^  [So 
in  a  very  recent  case,  an  agreement  to  enable  a  person 
to  sell  spirits  without  a  license,  was  held  not  enforceable, 
a  license  being  required  for  the  protection  of  public 
morals.^]  There  are  other  cases,  which  adopt  the  same 
general  principle  of  enlightened  justice.*  It  has,  how- 
ever, been  directly  denied  in  some  later  decisions.^ 
Whether  these  last  decisions  will  be  sustained,  remains 
a  question  for  the  determination  of  other  tribunals.  It 
is  difficult  to  perceive  any  just  or  solid  ground  upon 
which  a  contract  is  maintainable,  or  ought  to  be  en- 
forced in  the  tribunals  of  a  country,  which  is  knowingly 
entered  into  in  a  foreign  country,  with  the  subjects  of 
the  former  country  for  the  sale  of  goods,  which  are  to 
be  smuggled  into  it  against  its  laws  j  for  the  sale  thus 
made  is  the  avowed  means  to  accomplish  the  illegal  end.^ 


1  Langton  v.  Hughes,  1  Maule  &  Selw.  593.  -  Ibid. 

3  Ritchie  u.  Smith,  6  M.,  G.  &  Scott,  462  ;  18  Law  J.  R.  C.  P.  0. 

4  Canaan  v.  Brice,  3  Barn.   &   Adolph.   179,    181  ;    Catlia   v.  Bell, 
4  Camp.  R.  183. 

5  Hodgson  V.  Temple,  5  Taunt.  R.  183  ;   Peliicat  v.  Angell,  2  Cromp. 
Mees.  &  Rose.  311.     See  also  Johnson  v.  Hudson,  11  East,  R.  180. 

6  In  Peliicat  v.  Angell,  2  Cromp.  Mees.  &  Rose.  311,  the  case  was  of 


380  CONFLICT    OF   LAWS.  [CH.   VIIL 

§  255.    There  seems  at  present  a  strong  inclination 
in  the  courts  of  law  to  hold,  that,  if  a  contract  is  made 


a  bill  of  exchange,  accepted  in  France  by  the  defendant,  a  British  sub- 
ject, payable  to  the  plaintiff,  (a  Frenchman,)  being  for  the  price  of  goods 
sold  by  the  plaintiff  to  the  defendant  in  Paris  for  the  avowed  purpose  of 
being  smuggled  into  England.  The  bill  was  sued  in  the  English  Court 
of  Exchequer.  Lord  Abinger  on  that  occasion  said  ;  "  It  is  perfectly 
clear,  that,  where  parties  enter  into  a  contract  to  contravene  the  laws  of 
their  own  country,  such  a  contract  is  void  ;  but  it  is  equally  clear,  from  a 
long  series  of  cases,  that,  the  subject  of  a  foreign  country  is  not  bound  to 
pay  allegiance  or  respect  to  the  revenue  laws  of  this  ;  except,  indeed,  that 
where  he  comes  within  the  act  of  breaking  them  himself,  he  cannot  re- 
cover here  the  fruits  of  that  illegal  act.  But  there  is  nothing  illegal  in 
merely  knowing,  that  the  goods  he  sells  are  to  be  disposed  of  in  contra- 
vention of  the  fiscal  laws  of  another  country.  It  would  have  been  most 
unfortunate,  if  it  were  so  in  this  country,  where  for  many  years,  a  most 
extensive  foreign  trade  was  carried  on  directly  in  contravention  of  the 
fiscal  laws  of  several  other  States.  The  distinction  is,  where  he  takes  an 
actual  part  in  the  illegal  adventure,  as  in  packing  the  goods  in  prohibited 
parcels,  or  otherwise,  there,  he  must  take  the  consequences  of  his  own 
act.  But  it  has  never  been  said,  that  merely  selling  to  a  party,  who 
means  to  violate  the  laws  of  his  own  country,  is  a  bad  contract.  If  the 
position  were  true,  which  is  contended  for  on  the  part  of  the  defendant, 
that  this  appears  upon  the  plea  to  have  been  a  contract  for  the  express 
purpose  of  smuggling  the  goods,  it  would  follow,  that  it  would  be  a  breach 
of  the  contract,  if  the  goods  were  not  smuggled.  But  nothing  of  the  kind 
appears  upon  the  plea  ;  it  only  states  a  transaction,  which  occurs  about 
once  a  week  in  Paris.  The  plaintiff  sold  the  goods;  the  defendant  might 
smuggle  them  if  he  liked,  or  he  might  change  his  mind  the  next  day  ;  it 
does  not  at  all  import  a  contract,  of  which  the  smuggling  was  an  essential 
part."  It  appears  to  me  that  this  reasoning  is  wholly  unsatisfactory. 
The  question  is  not,  whether  it  is  a  part  of  the  contract  with  the  French- 
man, that  the  goods  shall  be  smuggled  ;  but  whether  he  does  not  know- 
ingly cooperate  by  the  very  sale,  as  far  as  in  him  lies,  to  accomplish  the 
illegal  intention  of  a  British  subject  to  smuggle  his  goods  contrary  to  the 
laws  of  his  country.  Can  a  British  tribunal  be  called  upon  to  enforce 
such  a  contract  1  Can  it  be  called  upon  to  aid  a  Frenchman  to  recover  a 
debt  contracted  for  the  purpose  of  violating  British  laws  1  Could  a  French- 
man, selling  poison  in  France  to  an  Englishman,  for  the  avowed  purpose 
of  poisoning  the  King  or  Queen  of  England,  recover  on  such  a  contract  in 
England  ?  In  Wetherell  v.  Jones,  (3  Barn.  &  Adolph.  R.  225,)  Lord  Ten- 
terden  said  ;  "  When  a  contract,  which  a  plaintiff  seeks  to  enforce,  is  ex- 
pressly or  by  implication  forbidden  by  the  statute  or  common  law,  no 


CH.  VIII.]  FOREIGN   CONTRACTS.  381 

ill  foreign  parts  by  a  citizen  or  subject  of  a  country,  for 
the  sale  of  goods  which  he  knows  at  the  time  are  to 
be  smuggled  in  violation  of  the  laws  of  his  own  country, 
he  shall  not  be  permitted  to  enforce  it  in  the  courts  of 
his  own  country,  although  the  contract  of  sale  is  com- 
plete, and  might  be  enforced  in  the  like  case  of  a 
foreigner.^  The  true  doctrine  would  seem  to  be,  to 
make  no  distinction  whatsoever  between  the  case  of  a 
sale  between  citizens  or  subjects,  and  the  case  of  a  sate 
between  foreigners ;  but  to  hold  the  contract  in  each 
case  to  be  utterly  incapable  of  being  enforced  at  least 
in  the  courts  of  the  country,  whose  laws  are  thus  de- 
signedly sought  to  be  violated.  Sound  morals  and  a 
due  regard  to  international  justice  seem  equally  to 
approve  such  a  conclusion.^ 

§  256.  Pardessus  has  asked  the  question,  whether,  if 
Frenchmen  have  entered  into  a  contract  abroad,  forbid- 
den by  the  laws  of  the  place,  where  it  is  made,  they 
can  insist  upon  its  execution  in  France ;  as  for  example, 
a  contract  for  contraband  trade,  or  smuggling  against 
the  laws  of  that  country.  And  he  has  answered,  that 
he  rather  thinks  they  may ;  since  this  offence  is  only  a 
violation  of  the  law  of  the  foreign  state ;  and  govern- 
ments in  this  respect  exercise  a  sort  of  mutual  hostility ; 


Court  will  lend  its  assistance  to  give  it  effect.  And  there  are  numerous 
cases  in  the  Books,  where  an  action  on  a  contract  lias  failed,  because 
either  the  consideration  for  the  promise,  or  the  act  to  be  done,  was  illegal, 
as  being  against  the  express  provisions  of  the  law,  or  contrary  to  justice, 
morality,  or  sound  policy."  Can  a  contract  be  fit  to  be  entertained  in  a 
British  Court,  whose  very  object  is  to  aid  in  a  violation  of  British  laws, 
and  policy,  and  morals? 

1  Biggs  V.  Lawrence,  3  T.  R.  454  ;  Clugas  v.  Penaluna,  4  T.  E..  466 ; 
Weymell  v.  Reed,  5  T.  R.  599;  Eunomus,  Dial.  3,  ^67;  Executors  of 
Cambioso  v.  Assignees  of  Moffat,  5  Wash.  Cir.  R.  98. 

2  Ante,  ^  244,  245. 


382  CONFLICT   OF   LAWS.  [CH.  VIII. 

and,  without  openly  favoring  enterprises  of  a  contra- 
band nature,  tliey  do  not  proscribe  tliem.^  But  this 
doctrine  of  Pardessus  is  certainly  a  departure  from  the 
general  principle,  that  the  validity  of  contracts  depends 
upon  the  Lex  loci  coiiiractus  ;  for,  in  the  case  supposed, 
the  contract  is  clearly  void  by  the  laws  of  the  country, 
where  it  is  made.  Huberus  holds  a  doctrine  somewhat 
different,  and  approaching  nearly  to  sound  principles. 
If  (says  he)  goods  are  secretly  sold  in  a  place  where 
they  are  prohibited,  the  sale  is  void  al  initio,  and  no 
action  will  lie  thereon,  in  whatever  country  it  may  be 
brought,  nay  not  even  to  enforce  the  delivery  thereof; 
for  if  there  had  been  a  delivery  thereof,  and  the  buyer 
should  refuse  to  pay  the  price,  he  would  be  bound  not 
so  much  by  the  contract  as  by  the  fact  of  having 
received  the  goods,  and  so  far  he  would  enrich  himself 
at  the  expense  and  loss  of  another.^ 

§  257.  It  might  be  different,  according  to  the  received, 
although  it  should  seem  upon  principle  indefensible,  doc- 
trine of  judicial  tribunals,  if  the  contract  were  made  in 
some  other  country,  or  in  the  foreign  country,  to  which 
the  parties  belong;  for  (as  we  have  seen)^  it  has  been 
long  laid  down  as  a  settled  principle,  that  no  nation  is 
bound  to  protect,  or  to  regard  the  revenue  laws  of  another 
country ;  and,  therefore,  a  contract  made  in  one  coun- 
try by  subjects  or  residents  there  to  evade  the  revenue 
laws  of  another  country,  is  not  deemed  illegal  in  the 
country  of  its  origin.''     Against  this  principle  Pothier 


1  5  Pardessus,  art.  1492. 

2  Hub.  De  Conflict,  ch.  3,  ^  5. 

3  Ante,  ^  245. 

4  See  Boucher  v.  Lawson,  Cas.  Temp.  Hard.  84,  89,  194  ;  Holman  v. 
Johnson,  Cowper,  R.  341  ;  Biggs  v.  Lawrence,  3  T.  R.  454  ;  Clugas  v. 
Penaluna,  4  T.  R.  466;  Ludlow  v.  Van  Rensaellaer,  iJohns.  R.  94; 


CH.  VIII.]  FOREIGN   CONTRACTS.  383 

argued  strongly,  as  being  inconsistent  with  good  faith, 
and  the  moral  duties  of  nations.'  Valin,  however,  sup- 
ports it ;  and  Emerigon  defends  it  upon  the  unsatisfac- 
tory ground,  that  smuggling  is  a  vice  common  to  all 
nations.^  An  enlightened  policy,  founded  upon  national 
justice,  as  well  as  national  interest,  would  seem  to  favor 
the  opinion  of  Pothier  in  all  cases,  where  positive  legis- 
lation has  not  adopted  the  principle,  as  a  retaliation 
upon  the  narrow  and  exclusive  revenue  system  of  an- 
other nation.^     The  contrary  doctrine  seems,  however, 


Lightfoot  V.  Tenant,  1  Bos.  &  Pull.  551,  557  ;  Planch6  v.  Fletcher,  Doug. 
R.  251  ;  Lever  v.  Fletcher,  1  Marsh.  Insur.  58  to  61,  2d  edit. 

1  Pothier,  Assnr.  n.  58. 

2  2  Valin,  Comm.  art.  49,  p.  127  ;  1  Em^rig.  ch.  8,  ^  5,  212,  215, 
(p.  216  to  218,  edite  par  Boulay-Paty,)  and  see  note  of  Estrangin  to  Po- 
thier, Assur.  n.  58  ;   1  Marsh.  Ins.  ch.  3,  ^  1,  p.  59,  60,  2d  edit. 

3  It  is  gratifying  to  find,  that  Mr.  Marshall  and  Mr.  Chitty  have  both 
taken  side  with  Pothier  on  this  point.  The  foUovping  passage  from  a 
work  of  the  latter  expounds  the  reasoning  with  considerable  force.  "  There 
is  something  in  these  decisions,  to  which  a  liberal  mind  cannot  readily  as- 
sent ;  and  the  impropriety  of  them  seems  to  have  been  hinted  at  by  Lord 
Kenyon,  in  the  before-mentioned  case  of  Weymell  v.  Reed.  It  is  impossi- 
ble not  to  feel  a  greater  inclination  towards  the  opinion  of  Pothier,  who 
observes,  '  that  a  man  cannot  carry  on  a  contraband  trade  in  a  foreign 
country,  without  engaging  the  subjects  of  that  country  to  commit  an  of- 
fence against  the  laws,  which  it  is  their  duty  to  obey  ;  and  it  is  a  crime  of 
moral  turpitude  to  engage  a  man  to  commit  a  crime  ;  that  a  man  carrying 
on  commerce  in  any  country,  is  bound  to  conform  to  the  laws  of  that  coun- 
try ;  and  therefore  to  carry  on  an  illicit  commerce  there,  and  to  engage 
the  subjects  of  that  country  to  assist  him  in  so  doing,  is  against  good 
faith  ;  and  consequently  a  contract  made  to  favor  or  protect  this  commerce 
is  peculiarly  unlawful,  and  can  raise  no  obligation.'  If  our  law  be  justifia- 
ble in  protecting  these  transgressions,  it  can  be  only  on  the  plea  of  neces- . 
sity.  But  where  is  the  necessity  1  Shall  we  be  told,  that  it  is  impossible 
to  ascertain  in  the  English  courts  the  complex  provisions  of  another  coun- 
try's revenue  law  ?  Surely  this  argument  can  avail  but  little,  when  it  is 
recollected,  that  in  all  cases,  where  the  argument  is  not  convenient,  the 
law  of  another  country,  however  complex,  is  the  rule,  by  which  contracts 
negotiated  in  that  country  are  tried  and  construed.  It  may  be  true,  that 
the  rule  of  our  law  was  adopted  by  way  of  retaliation  for  the  illiberal  con- 


384  CONFLICT    OF   LAWS.  [CH.  VIIL 

firmly  established  in  the  actual  practice  of  modern  na- 
tions without  any  such  discrimination,  too  firmly,  per- 
haps, to  be  shaken  except  by  some  Legislative  Act  abo- 
lishing it.-^ 

§  258.  (2)  The  second  class  of  excepted  contracts, 
comprehends  those  against  good  morals,  or  religion,  or 
public  rights.^  Such  are  contracts  made  in  a  foreign 
country  for  future  illicit  cohabitation  and  prostitution ;  ^ 
contracts  for  the  printing  or  circulation  of  irreligious 


duct  of  other  states,  and  is  continued  from  a  cautious  policy.  But  a  cau- 
tious policy  in  a  great  state  is  but  too  often  a  narrow  policy  ;  and,  after 
all,  the  best  policy  for  a  state,  as  well  as  for  an  individual,  will  perhaps 
be  found  to  consist  in  honesty  and  honorable  conduct.  Indeed,  the  system 
is  so  directly  opposite  to  the  clear  principles  of  right  feeling  between  man 
and  man,  that  nothing  could  have  withheld  the  states  of  Europe  from  con- 
curring for  its  total  abrogation,  except  the  smallness  of  the  gain  or  loss, 
that  attends  upon  it."     1  Chitty  on  Commerce  and  Manufac.  p.  83,  84  ; 

1  Marshall,  Insur.  59  to  61,  2d  edit.  Mr.  Chancellor  Kent  has  also  added 
his  own  high  authority  in  favor  of  the  rule  of  Pothier.  He  has  observed  ; 
"  It  is  certainly  matter  of  surprise  and  regret,  that  in  such  countries  as 
France,  England,  and  the  United  States,  distinguished  for'  a  correct  and 
enlightened  administration  of  justice,  smuggling  voyaged,  made  on  purpose 
to  elude  the  laws,  and  seduce  the  subjects  of  foreign  states,  should  be  coun- 
tenanced, and  even  encouraged,  by  the  Courts  of  justice.  The  princi- 
ple does  no  credit  to  the  commercial  jurisprudence  of  the  age."  .3  Kent, 
Comm.  Lect.  48,  p.  266,  267,  3d  edit.     See  also   La  Jeune   Eugenia, 

2  Mason,  R.  459,  461. 

1  See  also  Kohn  v.  Schooner  Renaisance,  5  Louis.  Ann.  R.  25. 

2  1  Bell,  Comm.  ^  232,  p.  232  to  p.  242,  4th  edit.  ;  Id,  p.  297  to  p.  314, 
5th  edit. 

3  See  1  Selwyn's  Nisi  Prius,  Assumpsit,  p.  59,  00  ;  Walker  v.  Perkins, 

3  Burr.  1568  ;  Greenwood  v.  Curtis,  6  INIass.  R.  379  ;  Birmington  v. 
Wallis,  4  Barn.  &  Aid.  650;  Lloyd  v.  Johnson,  1  Bos.  &  Pull.  340; 
Jones  V.  Randall,  Cowp.  R.  37  ;  Appleton  v.  Campbell,  2  Carr.  &  P. 
347  ;  De  Sobry  u.  DeLaistre,  2  Harr.  &  Johns.  R.  193,  228.  Lord  Mans- 
field, in  the  case  of  Robinson  v.  Bland,  2  Burr.  1084,  puts  the  very  case. 
In  many  countries  (says  he)  a  contract  may  be  maintained  by  a  courtesan 
for  the  price  of  her  prostitution  ;  and  one  may  suppose  an  action  to  be 
brought  here  ;  but  that  could  never  be  allowed  in  this  country.  There- 
fore the  lex  loci  cannot  in  all  cases  govern  and  direct. 


CH.  VIII.]  FOREIGN    CONTRACTS.  385 

and  obscene  publications ;  contracts  to  promote  or  re- 
ward the  commission  of  crimes  ;  contracts  to  corrupt,  or 
evade  the  due  administration  of  justice ;  contracts  to 
cheat  public  agents,  or  to  defeat  the  public  rights ;  and 
in  short,  all  contracts,  which  in  their  own  nature  are 
founded  in  moral  turpitude,  and  are  inconsistent  with 
the  good  order  and  solid  interests  of  society.^  All  such 
contracts,  even  though  they  might  be  held  valid  in  the 
country  where  they  are  made,  would  be  held  void  else- 
where, or  at  least  ought  to  be,  if  the  dictates  of  Chris- 
tian morality,  or  even  of  natural  justice  are  allowed  to 
have  their  due  force  and  influence  in  the  administration 
of  international  jurisprudence. 

[258  a.  But  to  come  within  this  exception,  a  contract 
must  be  clearly  founded  in  moral  turpitude,  and  not 
simply  contrary  to  the  statutes  of  the  country,  where  it 
is  sought  to  be  enforced.  Thus,  in  a  late  case  in  New 
York,  where  the  sale  of  lottery  tickets  is  prohibited  by 
law,  an  action  was  brought  on  a  bond  conditioned  for 
the  faithful  performance  of  certain  duties  enjoined  by  a 
law  of  Kentucky,  which  authorized  the  obligees  to  sell 
lottery  tickets,  for  the  benefit  of  a  college  in  that  State, 
and  the  bond  was  held  valid,  it  being  so  at  the  place 
where  the  condition  was  to  be  performed ;  and  it  was 
considered  immaterial  whether  the  bond  was  executed 
in  New  York,  or  in  Kentucky.^] 


1  See  Com.  Dig.  Assumpsit,  F.  7  ;  Smith  v.  Stotesbury,  1  W.  BI.  204 ; 
S.  C.  2  Burr.  924  ;  Foxes  v.  Johnnes,  4  Esp.  R.  97  ;  Willis  v.  Baldwin, 
Doug.  R.  450;  Walcot  v.  Walker,  7  Vesey,  R.  1 ;  Southeyu.  Sherwood, 
2  Merivale,  435,441;  Lawrence  v.  Smith,  Jacob,  R.  471,  474,  note  ; 
Jones  V.  Randall,  Cowp.  R.  37  ;  Bowrey  v.  Bennett,  1  Camp.  348  ;  Jen- 
nings V.  Throgmorton,  Ry.  &  Moody,  251  ;  Appleton  v.  Campbell,  2  C. 
&  P.  347  ;  Fergusson  on  Marr.  &  Div.  396,  397. 

2  Kentucky  j;.  Bassford,  6  Hill,  N.  Y.  R.  526. 
CONFL.  33 


386  CONFLICT    OF   LAWS.  [CH.  VIIL 

§  259.  (3.)  The  next  class  of  excepted  contracts  com- 
prehends those,  which  are  opposed  to  the  national  policy 
and  institutions.  For  example,  contracts  made  in  a 
foreign  country  to  procure  loans  in  our  own  country,  in 
order  to  assist  the  subjects  of  a  foreign  state  in  the  pro- 
secution of  war  against  a  nation  with  which  we  are  at 
peace ;  for  such  conduct  is  inconsistent  with  a  just  and 
impartial  neutrality ;  ^  contracts  entered  into  with  a 
foreign  government  or  its  agents,  (such  as  for  a  loan  of 
money,)  such  government  being  a  new  government,  un- 
acknowledged by  our  own  government,  to  which  the 
party,  entering  into  the  contract,  belongs  ;  ^  for  a  like 
rule  of  public  policy  applies  to  such  cases ;  contracts 
entered  into  by  our  own  citizens  or  others  in  violation 
of  a  monopoly,  granted  by  our  own  country  to  particu- 
lar subjects  thereof;  ^  contracts  by  our  own  citizens  or 
others  to  carry  on  trade  with  the  enemy,  or  to  cover 
enemy  property,  or  to  transport  goods  contraband  of 
war ;  ^  contracts  to  carry  into  effect  the  African  slave 
trade,  or  the  rights  of  slavery,  in  countries,  which  refuse 
to  acknowledge  its  lawfulness,  at  least  if  entered  into 
by  subjects  of,  or  residents  within,  such  countries.^     In 


1  De  Witz  V.  Hendricks,  9  Moore,  R.  586 ;  S.  C.  2  Bing.  R.  314. 
~  Thompson  v.  Powles,  2  Simons,  R.  194.     See  also  Jones  v.  Garcia 
del  Rio,  1  Turner  &  Rush.  R.  299. 

3  Pattison  v.  Mills,  1  Dow  &  Clarke,  R.  342. 

4  I  Marshall,  Insur.  B.  1,  ch.  3,  ^  3,  p.  78,  ^  4,  p.  85,  2d  edit.  ;  Gris- 
wold  V.  Waddington,  16  Johns.  R.  438  ;  2  Wheaton,  R.  Appendix,  35  ; 
Richardson  v.  Maine  Ins.  Co.  6  Mass.  R.  102,  110,  112,  113  ;  Musson  v. 
Fales,  16  Mass.  R.  332  ;  Coolidge  v.  Inglee,  13  Mass.  R.  26. 

5  See  Somerset's  Case,  Lofft's  R.  1  ;  20  Howell's  State  Trials,  79  ; 
Fergusson  on  Mar.  and  Div.  396,  397  ;  Madrazo  v.  Willes,  3  Barn.  & 
Aid.  353  ;  Forbes  v.  Cochrane,  2  Barn.  &  Cresw.  448 ;  and  especially  the 
opinion  of  Best,  J.  I  am  not  unaware  of  the  bearing  of  the  case  of  Green- 
wood V.  Curtis,  6  Mass.  R.  358,  on  this  point ;  and  without  undertaking 
to  examine  its  authority,  it  may  be  sufficient  to  say,  that  it  is  not  without 


CH.  VIII.]  FOREIGN    CONTRACTS.  387 

all  such  cases  the  contracts  would,  or  might  he,  held 
utterly  void,  whatever  might  he  their  validity  in  the 
country,  where  they  are  made,  as  being  inconsistent 
with  the  duties,  the  policy,  or  the  institutions,  of  other 
countries,  where  they  are  sought  to.be  enforced.^ 

§  259  a.  A  case,  illustrative  of  the  same  principle,  but 
of  far  less  repugnancy  to  the  policy  and  interests  of  the 
particular  country,  where  the  rights  under  a  contract 
are  sought  to  be  enforced,  occurred  in  Louisiana.  A 
debtor  in  another  State  made  a  contract,  and  transfer- 
red his  property  to  certain  creditors  in  preference  to 
his  general  creditors,  which  were  not  deemed  by  the 
laws  of  that  State  fraudulent  in  regard  to  the  latter 
creditors;  he  afterwards  came  to  Louisiana,  and  was 
arrested  there  ;  and  he  then  by  petition  sought  the  be- 
nefit of  the  insolvent  laws  of  Louisiana,  by  those  laws 
such  a  preference  would  be  fraudulent;  and  would  de- 
prive the  debtor  of  the  benefit  of  a  discharge  under  the 
insolvent  acts  of  the  State.  The  Court  held,  that  as  the 
debtor  sought  the  benefit  of  the  Louisiana  laws,  he 


difficulty  in  its  principles  and  application,  as  will  abundantly  appear  from 
the  elaborate  argument  of  Mr.  Justice  Sedgwick  in  the  same  case  (Id. 
362,  n.),  and  the  later  reasoning  of  Mr.  Justice  Best,  in  Forbes  r.  Coch- 
rane, 2  Barn.  &  Cresw.  448.  I  have  given,  in  the  text,  what  seems  to 
me  to  be  the  just  doctrine  resulting  from  the  modern  cases,  without  mean- 
ing to  assert,  that  the  authorities  cited  are  fully  in  point.  Ante,  ^  96  a. 
Mr.  Chief  Justice  Shaw,  arguendo,  in  the  case  of  Commonwealth  v.  Aves, 
18  Pick.  R.  193,  (Ante,  §  96,  a.  p.  93,  note,)  held,  that  a  suit  brought 
here  upon  a  note  of  hand,  given  in  a  State,  where  slavery  was  allowed,  for 
the  price  of  a  slave,  might  be  maintainable  in  our  courts,  and  that  the  con- 
sideration would  not  be  invalidated  upon  the  ground  of  the  consideration. 
It  may  be  so  here  ;  but  this  doctrine,  as  one  of  universal  application,  may 
admit  of  question  in  other  countries,  where  slavery  may  be  denounced  as 
inhuman  and  unjust,  and  against  public  policy. 

1   1  Bell,  Comm.  ^  234  to  %  250,  p.  232  to  p.  210,  4lh  edit.  ;  Id.  p.  298 
to  p.  314,  5lh  edit. 


388  CONFLICT    OF   LAWS.  [CH.  VIH. 

could  entitle  himself  to  it  only  by  showing  a  compliance 
with  all  their  provisions ;  and  that  the  preference,  so 
given  being  fraudulent  by  those  laws,  he  was  not  enti- 
tled to  the  discharge.  On  that  occasion  the  Court  said ; 
"  But  it  is  said,  that  if  we  put  such  a  construction  upon 
the  act,  we  give  an  extra-territorial  operation  to  our 
law,  by  treating,  as  null,  contracts  sanctioned  by  the 
Lex  loci,  and  regarding  as  fraudulent  those  transactions, 
which  were  in  fact  not  only  legal,  but  meritorious.  To 
this  it  may  be  answered,  that  we  leave  those  contracts 
undisturbed,  and  take  cognizance  of  them  no  further, 
than  as  the  voluntary  disposition  of  property  in  refer- 
ence to  our  own  insolvent  laws,  when  the  insolvent 
seeks  an  extraordinary  remedy,  to  which  he  would  not 
be  entitled  by  the  law  of  his  domicil ;  that  of  being  de- 
clared exonerated  from  the  payment  of  his  remaining 
debts,  on  the  assignment  of  the  remainder  of  his  effects. 
We  look  at  them  only  so  far,  as  they  form  a  condition, 
upon  which  depends  his  right  to  be  discharged,  and 
consequently  as  pertaining  to  the  remedy  sought  for. 
It  is  further  urged,  that  the  acts,  spoken  of  in  the  sta- 
tute, must  be  shown  to  have  been  done  in  contempla- 
tion of  taking  the  benefit  of  the  act,  and,  that  it  can- 
not be  supposed,  that  Andrews  had  in  view  the  bank- 
rupt laws  of  Louisiana,  when  he  made  these  assign- 
ments in  Alabama.  Taken  in  their  literal  sense,  it  is 
certainly  difficult,  if  not  impossible,  to  give  any  legal 
effect  to  these  expressions,  without  resorting  to  the 
extravagant  supposition,  that  the  insolvent  had  pro- 
cured his  own  arrest,  by  colluding  with  some  one  cre- 
ditor, and,  that  he  had  done  other  acts,  which  would 
tend  to  defeat  his  own  project.  But  the  charge  prayed 
for  does  not  omit  those  expressions,  and  it  is  not  now 
our   duty   to  inquire,  in   what   sense  they  are  to  be 


CH.  VIII.]  FOREIGN    CONTRACTS.  389 

understood,  and  whether,  by  the  general  principles  of 
our  law,  all  contracts  of  the  kind  spoken  of,  within 
three  months  preceding  insolvency,  between  debtor  and 
creditor,  be  not  presumed  to  be  in  fraud  of  other 
creditors."  ^ 

259  h.  A  case  of  a  more  difficult  character,  if  indeed 
it  be  not  of  a  more  questionable  character,  is  one  put 
by  Lord  Brougham,  arguendo,  in  the  course  of  one  of 
his  judgments.  Speaking  upon  the  point,  that  the 
Lex  hci  contractus  is  the  governing  rule  in  deciding 
upon  the  validity  or  invalidity  of  all  personal  contracts, 
he  said  -,  "  Thus,  a  marriage,  good  by  the  laws  of  one 
country,  is  held  good  in  all  others,  where  the  question 
of  its  validity  may  arise.  For  why  ?  The  question 
always  must  be;  Did  the  parties  intend  to  contract 
marriage  ?  And  if  they  did,  what  in  the  place  they 
were  in,  is  deemed  a  marriage,  they  cannot  reasonably, 
or  sensibly,  or  safely,  be  considered  otherwise  than  as  in- 
tending a  marriage  contract.  The  laws  of  each  nation 
lay  down  the  forms  and  solemnities,  a  compliance  with 
which  shall  be  deemed  the  only  criterion  of  the  inten- 
tion to  enter  into  the  contract.  If  those  laws  annex 
certain  qualifications  to  parties  circumstanced  in  a  par- 
ticular way,  or  if  they  impose  certain  conditions  prece- 
dent on  certain  parties,  this  falls  exactly  within  the 
same  rule ;  for  the  presumption  of  law  is  in  the  one 
case,  that  the  parties  are  absolutely  incapable  of  the 
consent  required  to  make  the  contract,  and  in  the  other 
case,  that  they  are  incapable,  until  they  have  complied 
with  the  conditions  imposed.  I  shall  only  stop  here  to 
remark,  that  the  English  jurisprudence,  while  it  adopts 


1  Andrews  v.  His  Creditors,  11  Louis.  R.  464,  479. 
33* 


390  CONFLICT    OF   LAWS.  [CH.  VIU. 

this  principle  in  words,  would  not,  perhaps,  in  certain 
cases,  which  may  be  put,  be  found  very  willing  to  act 
upon  it  throughout.  Thus,  we  should  expect  that  the 
Spanish  and  Portuguese  Courts  would  hold  an  English 
marriage  avoidable  between  uncle  and  niece,  or  brother 
and  sister-in-law,  though  solemnized  under  papal  dis- 
pensation ;  because  it  would  clearly  be  avoidable  in 
this  country.  But  I  strongly  incline  to  think,  that  our 
Courts  would  refuse  to  sanction,  and  would  avoid  by 
sentence,  a  marriage  between  those  relatives  contracted 
in  the  Peninsula,  under  dispensation,  although  beyond 
all  doubt  such  a  marriage  would  there  be  valid  by  the 
Lex  loci  contractus,  and  incapable  of  being  set  aside  by 
any  proceedings  in  that  country." '" 

260.  (4.)  Another  rule,  naturally  flowing  from,  or 
rather  illustrative  of,  that  already  stated,  respecting 
the  validity  of  contracts,  is,  that  all  the  formalities, 
proofs,  or  authentications  of  them,  which  are  required 
by  the  Lex  loci  are  indispensable  to  their  validity 
everywhere  else.~  And  this  is  in  precise  conformity  to 
the  rule  laid  down  on  the  subject  by  Boullenois.^  11 
fend,  liar  rcqiiiort  a  la  forme  intrinsiqiie  et  constitutive  des 


1  Warrender  v.  Warrender,  9  Bligh,  R.  Ill,  112 ;  post,  ^  226  c. 

2  See  ante,  ^  123  ;  1  Burge,  Comment,  on  Col.  and  For.  Law,  Pt.  1, 
ch.  1,  p.  29,  30  ;  3  Burge,  Coram.  Pt.  2,  ch.  20,  p.  752  to  p.  764  ;  Foelix, 
Conflit  des  Lois,  Revue  Etrang.  et  Franc.  Tom.  7,  1840,  ^  40  to  ^  51, 
p.  346  to  p.  360;  Warrender  v.  Warrender,  9  Bligh,  111  ;  ante,  ^  259  c. 

3  Erskine's  Inst.  B.  3,  tit.  2,  ^39,  40,  41,  p.  514,  515  ;  Boullenois, 
Quest.  Mixt.  p.  5  ;  Bouhier,  Cout.  de  Bourg.  ch.  21,  ^  205  ;  2  Boullenois, 
Observ.  46,  p.  467  ;  ante,  ^  240  ;  1  Hertii  Op.  De  Collis.  Leg.  ^  4,  n.  59, 
edit.  1737 ;  Id.  p.  209,  edit.  1716.  See  also  Voet,  ad  Pand.  Lib.  5,  tit.  1, 
^  51  ;  1  Boullenois,  Observ.  23,  p.  523  ;  Id.  p.  446  to  p.  466  ;  Henry  on 
Foreign  Law,  37,  38  ;  Id.  224  ;  5  Pardessus,  Droit  Comm.  art.  1485  ; 
Mr.  Justice  Martin,  in  Depau  v.  Humphreys,  20  Martin,  R.  1,  22  ;  ante, 
^  122,  ^  259  b  ;  post,  ^  299  a. 


CH.  VIII.]  FOREIGN   CONTRACTS.  391 

ades,  suivre  encore  la  hi  dii  control.  Quand  la  Loi  exicje 
certaines  formalites,  lesquelles  sont  attacMcs  aiix  clioses 
memes,  il  faiit  suivre  la  loi  de  la  situation}  Burgundus 
has  expressed  the  same  doctrine  in  very  pointed  terms. 
Et  quidem  in  scriptura  instrumenti,  in  solemnitaiibus,  ct  cere- 
moniis,  et  (/enercditer  in  omnibus^  quce.  ad  formam  ejusque 
perfectionem  pertinent,  spectanda  est  consiietudo  regionis,  vhi 
fit  negotiation  Dumoulin  says  ;  Aut  statutum  loquitur  de 
Jiis,  qucB  concernunt  nudam  ordinationem  vel  solemnitateni 
actus  ;  et  semper  insjncitur  statutum  vel  consuetudinem  loci, 
nU  actus  celebratxir,  sive  in  coniractibus,  sive  in  judiciis,  sive 
in  testamentis,  sive  in  instrumentis,  aut  aliis  conficiendis? 
And  again  ;  In  concernejiiibus  contractimi,  et  emergentibus, 
spectatur  locus,  in  quo  contraUtiir  ;  et  in  concernentibus  me- 
ram  solemnitatem  ciijiiscimque  actus,  locus,  in  quo  iUe  cele- 
hraiur^  Casaregis  says ;  Commimissima  enini  est  distinc- 
tio,  quod  aut  disscritur  de  modo  procenendi  in  judicio,  aut 
de  juribus  contractus,  cui  robur  et  specialis  forma  tributa 
est  a  statvio,  vel  a  contrahentibus.  Et  in  primo  casu  atten- 
dendum  sit  statutum  loci,  in  quo  Judicium  agitatur  ;  in  se- 
cundo,  vcro,  casu  attendatur  statutum  loci,  in  quo  fuit  cele- 
bratics  contractus.^  liertius  is  still  more  direct.  jSi  Lex 
actui formam  dat,  inspiciendus  est  locus  actus,  non  domicilii, 
non  rei  sita  ;  id  est,  si  de  solemnibus  quceratur,  si  de  loco, 
de  tempore,  de  modo  actus,  ejus  loci  Jiabenda  est  ratio,  x(bi 


1  2  BouUenois,  Observ.  46,  p.  467  ;  ante,  ^  240;  1  Boullenois,  Observ. 
23,  p.  491,  492. 

2  Burgundus,  Tract.  4,  n.  7,  n.  29  ;  post,  §  300  a  ;  2  Boullenois,  Ob- 
serv. 46,  p.  450,  451. 

3  Molin,  Opera,  Comment.  Cod.  Lib.  1,  tit.  4,  1.  1,  Conclus.  de  Statut. 
Tom.  3,  p.  554,  edit.  1681  ;  post,  ^  441,  479  k. 

4  Molin.  Opera,  tit.  1,  De  Fiefs,  ^  12,  Gloss.  7,  n.  37,  Tom.  1,  p.  224, 
edit.  1681. 

5  Casaregis,  Disc.  Comra.  179,  n.  59. 


392  CONFLICT    OF   LAWS.  [CH.  YIII. 

actus  sive  negotiiim  celehratur}  Christinseus,  Everliardus, 
and  other  distinguished  jurists,  adopt  the  same  doc- 
trine.^ And  it  seems  fully  established  in  the  common 
law.  Thus,  if  by  the  laws  of  a  country  a  contract  is 
void,  unless  it  is  written  on  stamp  paper,  it  ought  to 
be  held  void  everywhere  ;  for  unless  it  be  good  there, 
it  can  have  no   obligation  in  any  other  country.^     It 


^  Hertii  Opera,  Collis.  Leg.  ^  4,  n.  10,  p.  126  ;  Id.  n.  59,  p.  148,  edit. 
1737  ;  Id.  p.  179,  p.  209,  edit.  1716  ;  post,  ^  3,  8,  10,  11.  See  also  Co- 
chin, CEiivres,  Tom.  1,  p.  72,  4to  edit.  ;  Id.  Tom.  3,  p.  26  ;  Id.  Tom.  5, 
p.  697  ;  D'Aguesseau,  CEuvres,  Tom.  4,  p.  637,  722,  4to  edit. 

2  Everhard.  Consil.  72,  n.  11, p.  206;  Id.  n.  18,  p.  207  ;  Id.  27,  p.  209; 
post,  ^  300  b.  ;  Christin.  Decis.  283,  Vol.  1,  p.  355,  n.  1,  4,  5,  8,  9,  10, 
11  ;  post,  §  300  c.  ;  Molin.  Comment,  ad  Consuet.  Paris,  tit.  1,  ^  12, 
Gloss.  7,  n.  37,  Tom.  1,  p.  224  ;  post,  §  300  d ;  2  Boullenois,  Observ. 
46,  p.  460,  461  ;  ante,  ^  122.  —  Dumoulin  pushes  the  doctrine  further, 
and  says  ;  Et  est  omnium  Doctorum  sententia,  ubicumque  consuetude,  vel 
statutum  locale,  disponit  de  solemnitate,  vel  forma  actus,  ligari  etiam  ex- 
teros  ibi  actum  ilium  gerentes,  et  gestum  esse  \alidum,  et  efficacem 
ubique,  etiam  super  bonis  solis  extra  territorium  consuetudinis.  Molin. 
Consil.  53,  ^  9  ;  Molin.  Oper.  Tom.  2,  p.  965,  edit.  1681  ;  2  Burge,  Com. 
on  Col.  and  For,  Law,  Pt.  2,  ch.  9,  p.  865,  866  ;  post,  ^  441. 

3  Alves  V.  Hodgson,  7  T.  R.  237  ;  Clegg  v.  Levy,  3  Campb.  R.  166. 
But  see  Chitty  on  Bills,  (8th  edit.)  p.  143,  note  ;  and  Winne  v.  Jackson, 
2  Russell,  R.  351  ;  3  Burge,  Coram,  on  Col.  and  For.  Law,  Pt.  2,  ch.  20, 
p.  762.  — The  case  of  Winne  v.  Jackson,  2  Russell,  R.  351,  is  certainly 
at  variance  with  this  doctrine.  It  was  a  bill,  brought  to  stay  proceedings 
at  law  on  a  suit,  brought  in  England  by  the  holder  against  the  acceptor  of 
bills  of  exchange,  made  and  accepted  in  France,  and  which,  in  an  action 
brought  in  the  French  courts,  had  been  held  invalid  for  want  of  a  proper 
French  stamp.  The  Vice-Chancellor  held,  "  that  the  circumstance  of  the 
bills  being  drawn  in  France,  in  such  a  form  that  the  holder  could  not  re- 
cover on  them  in  France,  was  no  objection  to  his  recovering  on  them  in 
an  English  Court."  This  doctrine  is  wholly  irreconcilable  with  that  in 
Alves  V.  Hodgson,  7  T.  R.  241,  and  Clegg  v.  Levy,  3  Camp.  R.  166  ;  and 
if  by  the  laws  of  France  such  contracts  were  void,  if  not  on  stamped 
paper,  it  is  equally  unsupportable  upon  acknowledged  principles.  In  the 
case  of  James  v.  Catherwood,  3  Dowl.  and  Ry.  190,  where  assumpsit  was 
brought  for  money  lent  in  France,  and  unstamped  paper  receipts  were  pro- 
duced in  proof  of  the  loan,  evidence  was  offered  to  show,  that  by  the 
laws  of  France  such  receipts  required  a  stamp  to  render  them  valid  ;  but 


CH.  viil]  foreign  contracts.  393 

might  be  difierent,  if  the  contract  had  been  made  pay- 
able in  another  country ;  or  if  the  objection  were  not 


it  was  rejected  by  the  Court,  and  the  receipts  were  admitted  in  evidence 
upon  the  ground,  that  the  courts  of  England  could  not  take  notice  of  the 
revenue  laws  of  a  foreign  country.     But  this  is  a  very  insufficient  ground, 
if  the  loan  required  such  receipt  and  stamp  to  make  it  valid  as  a  contract. 
And,  if  the  loan  was  good  per  se  ;  but  the  stamp  was  requisite  to  make 
the  receipt  good  as  evidence,  then  another  question  might  arise,  whether 
other  proof,  than  that  required  by  the  law  of  France,  was  admissible  of  a 
written  contract.     This  case  also  is  inconsistent  with  the  case  in  3  Camp. 
R.  166.     Can  a  contract  be  good  in  any  country,  which  is  void  by  the  law 
of  the  place  where  it  is  made,  because  it  wants  the  solemnities  required 
by  that  law  ?     Would  a  parol  contract  made  in  England,  respecting  an 
interest  in  lands,  against  the  Statute  of  Frauds,  be  held  valid  elsewhere  1 
Would  any  court  dispense  with  the  written  evidence  required  upon  such 
a  contract  ?     On  a  motion  for  a  new  trial,  the  Court  refused  it.  Lord  Chief 
Justice  Abbott  saying  ;  "The  point  is  too  plain  for  argument.     It  has 
been  settled,  or,  at  least,  considered  as  settled,  ever  since  the  time  of  Lord 
Hardwicke,  that  in  a  British  court  we  cannot  take  notice  of  the  revenue 
laws  of  a  foreign  state.     It  would  be  productive  of  prodigious  inconve- 
nience, if,  in  every  case,  in  which  an  instrument  was  executed  in  a  foreign 
country,  we  were  to  receive   in   evidence,  what  the  law  of  that  country 
was,  in  order  to  ascertain  whether  the  instrument  was,  or  was  not,  valid." 
With  great  submission  to  his  Lordship,  this  reasoning  is  wholly  inadmis- 
sible.    The  law  is  as  clearly  settled,  as  any  thing  can  be,  that  a  contract, 
void  by  the  law  of  the  place  where  it  is  made,  is  void  everywhere.     Yet, 
in  every  such  case,  whatever  may  be  the  inconvenience,  courts  of  law  are 
bound  to  ascertain  what  the  foreign  law  is.     And  it  would  be  a  perfect 
novelty  in  jurisprudence  to  hold,  that  an  instrument,  which,  for  want  of 
due  solemnities  in  the  place  where  it  was  executed,  was  void,  should  yet 
be  valid  in  other  countries.     We  can  arrive  at  such  a  conclusion  only  by 
overturning  well  established  principles.     The  case  alluded  to,  before  Lord 
Hardwicke,  was  probably  Boucher  v.  Lawson,  (Cases  T.  Hard.  85)  ;  Id. 
194,  which  was  the  case  of  a  contract  between  Englishmen,  to  be  execut- 
ed in  England,  to  carry  on  a  smuggling  trade  against  the  laws  of  Portu- 
gaL     Lord  Hardwicke  said,  that  such  a  trade  was  not  only  a  lawful  trade 
in  England,  but  very  much  encouraged.     The  case  is  wholly  distinguish- 
able from  the  present  case  ;  and   from   that  of  any  contract   made  in  a 
country  and  to  be  executed  there,  which  is  invalid  by  its  laws.     A  con- 
tract made  in  Portugal  by  persons  domiciled  there,  to  carry  on  smuggling 
against  its  laws,  would,  or  ought  to  be  held  void  everywhere.     See  also  3 
Chitty  on  Comra.  and  Manuf.  ch,  2,  p.  166. 


394  CONFLICT    OF   LAWS.  [CH.  VIIL 

to  the  validity  of  the  contract,  but  merely  to  the  ad- 
missibility of  other  proof  of  the  contract  in  the  foreign 
court/  where  a  suit  was  brought  to  enforce  it ;  or  if  the 
contract  concerned  real  or  immovable  property,  situated 
in  another  country,  whose  laws  are  different,  respecting 
which,  as  we  shall  presently  see,  there  is  a  difference 
of  opinion  among  foreign  jurists,  although  in  England 
and  America  the  rule  seems  firmly  established,  that  the 
law  m  sitce,  and  not  that  of  the  place  of  the  contract, 
is  to  prevail.^ 

§  260  ^.  So,  where  the  forms  of  public  instruments 
are  regulated  by  the  laws  of  a  country,  they  must  be 
strictly  followed,  to  entitle  them  to  be  held  valid  else- 
where. As,  for  example,  if  a  protest  of  a  bill  of  ex- 
change, made  in  another  State,  is  required  by  the  laws 
of  that  State  to  be  under  seal,  a  protest,  not  under 
seal,  will  not  be  regarded  as  evidence  of  the  dishonor 
of  the  bill.3 

§  261.  The  ground  of  this  doctrine,  as  commonly 
stated,  is,  that  every  person,  contracting  in  a  country, 
is  understood  to  submit  himself  to  the  law  of  the  place, 
and  silently  to  assent  to  its  action  upon  his  contract. 
Paul  Voet  has  expressed  it  in  the  following  language. 
Quid  si  de  contractihus  proprie  dictis,  et  qiiidem  eonmi 
solemnihis  contentio ;  quis  locus  spedahihir,  an  domicilii 
contrahentis,  an  loci,  iihi  quis  contrahit  ?     Respondeo,  affir- 


1  Ludlow  I'.  Van  Rensellaer,  1  Johns.  R.  93  ;  James  v.  Catherwood,  3 
Dowl.  &  Ryl.  190.  See  Clarke  v.  Cochran,  3  Martin,  R.  358,  360,  361  ; 
Brown  V.  Thornton,  6  Adolp.  &  Ellis,  R.  185;  Yates  v.  Thompson,  3 
Clarke  &  Fin.  R.  544. 

2  Post,  i5>  363  to  373, 435  to  445  ;  Foelix,  Confl.  des  Lois,  Revue  Etrang. 
et  Franc.  Tom.  7,  1840,  §  40  to  50,  p.  346  to  p.  359. 

3  Ticknor  v.  Roberts,  11  Louis.  R.  14  ;  Bank  of  Rochester  v.  Gray,  2 
Hill,  N.  Y.  Rep.  227. 


CH.  VIII.]  "     FOREiaN   CONTRACTS.  395 

manter ;  Posteriiis.  Quia  censetiir  qids,  semet  contra- 
hendo,  legihus  istiiis  loci,  ubi  contraliit,  etiam  ratione  solem- 
niiim  siibjicere  volmsse.  Ut  qiiemadmodim  loci  consiietudo 
suhintrat  contradum,  cjusque  est  dedamtiva  ita  etiam  loci 
statidwn}  It  would,  perhaps,  be  more  correct  to  say, 
that  the  law  of  the  place  of  the  contract  acts  upon  it, 
independently  of  any  volition  of  the  parties,  in  virtue 
of  the  general  sovereignty,  possessed  by  every  nation, 
to  regulate  all  persons,  and  property,  and  transactions, 
within  its  own  territory.^  And,  in  admitting  the  law 
of  a  foreign  country  to  govern  in  regard  to  contracts 
made  there,  every  nation  merely  recognizes,  from  a 
principle  of  comity,  the  same  right  to  exist  in  other 
nations,  which  it   demands  and  exercises   for  itself.^ 


1  p.  Voet,  De  Stat.  §  9,  ch.  2,  n.  9,  p.  267 ;  Id.  p.  323,  edit.  1661 ; 
Cochin,  CEuvres,  Tom.  5,  p.  697,  4to.  edit.  ;  Fergusson  on  Marr.  and 
Div.  397;  2  Boullenois,  Observ.  46,  p.  475,  476;  Id.  500,  501,  502; 
Casaregis,  Disc.  179,  ^  56;  ante,  §122.  —  Boullenois,  and  some  other 
jurists  contest  the  universality  of  this  presumed  assent  to  the  law  of  the 
place  of  the  contract ;  and  assert,  that  the  principle  generally  and  broadly 
taken,  g6n6ralement  et  cruement  (nuditer  et  indistincte,)  is  not  correct. 
But  where  no  other  place  of  performance  is  pointed  out,  it  seems  difficult 
to  see,  what  other  law  is  to  govern.  See  2  Boullenois,  Observ.  46,  p.  457, 
458,  459  ;  Id.  501,  502  to  518  ;  Bouhier,  Cout.  de  Bourg.  ch.  21,  §  191, 
192  ;  Voet,  De  Stat.  §  9,  ch.  2,  §  10,  p.  269  ;  Id.  p.  325,  edit.  1661. 
Hertius  even  goes  so  far  as  to  say,  that  the  law  of  the  place  of  a  contract 
does  not  govern,  where  the  party  is  a  stranger,  ignorant  of  ils  laws  ; 
"  Non  valet,  si  exterus  ignoravit  statutum."  1  Hertii  Opera,  De  Collis. 
Leg.  §  4,  p.  126,  127,  §  10,  edit.  1737;  Id.  p.  179,  edit.  1716.  See  also 
'2  Boullenois,  Observ,  46,  p.  502.  Can  a  stranger,  living  in  a  country, 
plead  ignorance  of  the  laws  of  that  country  in  his  defence  ?  Is  he  not 
bound  by  them,  whether  he  knows  them,  or  not?  Huberus,  on  the  con- 
trary, holds,  that  the  law  of  the  place  of  the  contract  governs,  not  only  in 
respect  to  those  who  are  domiciled,  but  those  who  are  commorant  there. 
Huberus,  Lib.  1,  lit.  3,  De  Conflict.  Leg.  §  3. 

2  See  the  opinion  of  Mr.  Chief  Justice  Marshallin  Ogden  v.  Saunders, 
12  Wheat.  R.  332,  338  to  347. 

3  Blanchard  v.  Russell,  13  Mass.  R.  1,  4. 


396  CONFLICT    OF   LAWS.      "  [CH.  VIIL 

Some  foreign  jurists  make  an  exception  from  the  gene- 
ral rule  in  cases  of  contract,  made  in  a  foreign  country 
by  any  persons,  for  the  purpose  of  evading  the  revenue 
system,  or  the  local  solemnities,  prescribed  by  the  laws 
of  their  own  country,  respecting  such  contracts.^  Thus, 
Paul  Voet  lays  it  down  among  his  exceptions.  Nisi 
qiiis,  quo  in  loco  domicilii  evitaret  molestam  aliqiiam  vel 
sumptuosam  solemnitatem,  adeoqiie  in  fraiidem  siii  statuti 
nulla  necessitate  cogente  alio  proficiscatur,  et  mox  ad  locum 
domicilii,  gesto  alihi  negotio,  revertatur?  Nisi  etiam  extra 
locum  domicilii  velit  iiti  statuto  suce  patrice  favorabiliy  quoad 
solemnia  ;  tu  forte  contractus  alihi  ita  gestus,  ubi  alia  solem- 
nia  erant  adhihenda,  ex  aquo  et  hono  in  patria,  sustine- 
retur? 

§  262.  Illustrations  of  this  rule  might  be  easily  mul- 
tiplied. Thus,  by  the  English  and  American  law,  con- 
tracts, which  fall  within  the  purview  of  what  is  called, 
the  Statute  of  Frauds,  are  required  to  be  in  writing ; 
such  are  contracts  respecting  the  sale  of  lands,  contracts 
for  the  debts  of  third  persons,  and  contracts  for  the  sale 
of  goods  beyond  a  certain  value.  If  such  contracts 
made  by  parol,  [per  verha,)  in  a  country,  by  whose  laws 
they  are  required  to  be  in  writing,  are  sought  to  be 
enforced  in  any  other  country,  they  will  be  held  void, 
exactly  as  they  are  held  void  in  the  place  where  they 
are  made.  And  the  like  rule  applies,  vice  versa,  where 
parol  contracts  are  good  by  the  law  of  the  place,  where 
they  are  made ;  but  they  would  be  void,  if  originally 


1  p.  Voet,  De  Statut.  ^  9,  ch.  2,  n.  9,  p.  268,  Excep.  3,  4  ;  Id.  p.'324, 
edit.  1661. 

2  P.  Voet,  de  Statut.  ^  9,  ch.  2,  Ex.  2,  p.  268,  edit.  1715 ;  Id.  p.  324, 
edit.  1661. 

3  Ibid. 


CH.  viil]  foreign  contracts.  .   397 

made  in  another  place,  where  they  are  sought  to  he 
enforced,  for  want  of  certain  solemnities,  or  for  want 
of  being  in  writing,  as  required  by  the  local  law.^  It 
is  a  very  different  question,  as  we  shall  presently  see, 
what  rule  is  to  prevail,  where  the  contract  respects 
real  or  immovable  property,  and  the  law  of  the  place 
of  the  contract  and  that  of  the  situs  m  require  different 
forms  and  solemnities  to  give  validity  to  them." 

§  262  a.  But,  suppose  goods  are  bargained  for  by  a 
merchant  in  one  country,  to  be  paid  for  on  delivery  by 
a  merchant  in  another  country,  who  is  domiciled  there, 
and  has  given  the  order  therefor ;  and  the  law  of  the 
country,  where  the  bargain  is  made,  does  not  require, 
that  there  should  be  any  memorandum  thereof  in 
writing ;  but  the  law  of  the  country,  where  the  delivery 


*  2  Boullenois,  Observ.  33,  p.  459,  460,  461  ;  1  Boullenois,  Observ, 
46,  p.  492  to  p.  498;  Id.  499;  Id.  506  ;  Id.  523  ;  Erskine's  Inst.  B.  3, 
tit.  2,  ^  39,  40;  Vidal  v.  Thompson,  11  Martin,  R.  23  ;  Casaregis.  Disc. 
179,  n.  59,  60 ;  1  Heriii  Opera,  De  Collis.  Leg.  p.  148,  ^  59,  edit,  1737  ; 
Boullenois,  Quest,  de  la  Contrar.  des  Loix,  p.  5;  Livermore,  Diss.  p.  46, 
^  41  ;  1  Barge,  Comm.  Pt.  1,  ch.  1,  p.  29 ;  3  Burge,  Comm.  p.  2,  ch.  20, 
p.  758  to  p.  762,  769  ;  Alves  v.  Hodgson,  7  T.  R.  241 ;  Clegg  v.  Levy, 
3  Camp.  166.  But  see  Wynne  v.  Jackson,  2  Russell,  R.  251  ;  and  James 
V.  Calherwood,  3  Dowl.  &  Ryl.  190;  ante,  §  260,  and  note,  p.  216  ;  post, 
^  362  to  ^  373.  Hertius  seems  to  think,  that,  if  foreigners  in  another 
country  make  a  contract  according  to  the  law  of  their  own  country,  (both 
belonging  to  the  same  country,)  in  such  a  case,  the  contract  will  avail  in 
their  own  country,  even  if  not  made  according  to  the  lex  loci  contractus. 
1  Henii  Opera,  De  Collis.  Legum,  ^  10,  p.  126,  128,  edit.  1737  ;  Id. 
p.  179,  180,  181,  edit.  1716.  So  is  Voet,  de  Statut.  §  9,  ch.  2,  Excep.  4, 
p.  268,  edit.  1716  ;  Id.  p.  325,  edit.  1661.  But  Boullenois  lias  observed, 
that  he  does  not  find  any  authors,  who  are  of  opinion,  that  such  a  contract 
made  elsewhere,  according  to  the  law  of  their  own  country,  ought  to  have 
place  even  beyond  the  country.     2  Boullenois,  Observ.  46,  p.  459. 

2  Post,  ^  363  to  373,  ^  435  to  445  ;  1  Boullenois,  Observ.  23,  p.  448  to 
p.  472. 

CONFL.  34 


398  CONFLICT    OF   LAWS.  [CH.  VIIL 

is  to  be  made,  does  require  such  a  memorandum  in 
writing.  By  what  law  is  the  bargain  to  be  governed  ; 
by  the  law  of  the  place  of  the  bargain,  or  by  that  of 
the  place  of  delivery  ?  It  seems  to  have  been  thought, 
that,  in  such  a  case,  the  law  of  the  place  of  delivery  is 
to  govern.^ 

§  263.  (5.)  Another  rule,  illustrative  of  the  same 
general  principle  is,  that  the  law  of  the  place  of  the 
contract  is  to  govern,  as  to  the  nature,  the  obligation, 
and  the  interpretation  of  the  contract ;  Locus  contractus 
regit  actum?     Again ;   Quod  si  de  ipso  contractu  quceratur 


'  The  case  of  Acebal  v.  Levy,  10  Bing.  R.  376,  seems  to  have  involved 
this  very  question,  although  it  does  not  appear  to  have  attracted  the  atten- 
tion either  of  the  Bar  or  of  the  Court.  The  case  vi^ent  off  upon  a  sup- 
posed variance  between  the  counts  and  the  evidence.  The  statement  of 
the  facts  in  the  body  of  the  Report  does  not  show,  whether  the  goods  in 
the  case,  which  were  sold  and  shipped  at  Gigon  in  Spain,  by  order  of  an 
agent  of  the  defendants,  were  to  be  sent  to  the  defendants  in  England, 
were  sold  to  be  paid  for  in  England  after  their  arrival  and  delivery  there, 
or  were  to  be  paid  for  on  their  shipment.  But  Lord  Chief  Justice  Tlndal, 
in  delivering  the  opinion  of  the  Court  said,  that  in  point  of  fact  the  parol 
evidence  at  the  trial,  established,  that  the  price  of  the  goods  was  to  be  the 
current  shipping  price  at  Gigon  ;  and  to  be  paid  for  on  the  delivery  thereof 
in  England.  The  defendants  refused  to  receive  them;  and  the  agent  of 
the  plaintiff  then  sold  them  for  account  of  the  plaintiff,  and  the  action  was 
brought  for  the  difference  between  the  price  of  the  purchase,  and  the  sale 
thus  made.  One  of  the  objections  taken  was,  that  there  was  no  memo- 
randum in  writing  required  by  the  English  Statute  of  Frauds.  The  ob- 
jection was  not  sustained,  because  the  Court  thought,  that  there  was  a  suffi- 
cient memorandum  ;  but  the  memorandum  varied  from  the  counts  in  the 
declaration.  But  the  Court  and  Bar  seems  to  have  supposed,  that  the 
English  Statute  of  Frauds  did  apply  to  the  case  ;  which  is  certainly  a  mat- 
ter open  to  much  discussion,  and  as  we  shall  presently  see,  (post,  ^  285, 
§  318,)  has  been  thought  open  to  a  very  different  conclusion.  See  Vidal 
V.  Thompson,  11  Martin,  R.  23,  24,  25. 

2  1  Em6r.  Assur.  ch.  4,  ^  8,  p.  122,  125,  128.  See  Casaregis,  Disc. 
179,  !^  60  ;  Erskine's  Inst.  B.  3,  tit.  2,  §  39,  40,  p.  514,  515  ;  Delvalle  v. 
Plomer,  3  Camp.  R.  444  ;  Harrison  v.  Sterry,  5  Cranch,  289  ;  Le  Roy  v. 
Crowninshield,  2  Mason,  R.  15  ;  Van  Reimsdyke  v.  Kane,  I  Gallis.  R. 


CH.  VIII.]  FOREIGN    CONTRACTS.  399 

(says  Paul  Voet)  scu  de  naiiird  ipsius,  sen  de  lis,  qiice  ex 
naturd  contract  as  veniunt,  iniia  fidejiissione,  etc.  etiam  spec- 
tandum  est  loci  stcdiitum,  iibi  contractus  cclchratiir  ;  quod 
ci  contrahentes  scmet  accommodare  pr(ssumantiu'}     First, 


371 ;  2  Kent,  Comm.  Lect.  37,  p.  394,  Lect.  39,  p.  458  to  460,  3d  edit.  ; 
S.  P.  Ferguson  v.  Fyffe,  8  Clark  &  Fin.  121,  140. 

1  P.  Voet,  De  Stat.  ^  9,  ch.  2,  ^  10,  p.  269,  edit.  1737  ;  Id.  p.  253, 
edit.  1661.  J.  Voet  is  still  niore  full  on  the  same  point.  Voet,  ad  Pand. 
Lib.  4,  tit.  1,  ^  29,  p.  240,  241.  Si  adversus  contractum  (says  he)  ali- 
udve  negotium  gestum  factumve  restitutio  desideretur,  dum  quis  aut  metu, 
autdolo,  aut  errore  lapsus,  damnum  sensit  contrahendo,  transigendo,  sol- 
vendo,  fidejubendo,  hereditatem  adeundo,  aliove  simili  modo  ;  recte  inter- 
pretes  statutisse  arbitror,  leges  regionis  in  qua  contractum  gestumve  est  id, 
contra  quod  restitutio  petitur,  locum  sibi  debere  vindicare  in  terminanda  ipsa 
restitutionis  controversia,  sive  res  illae,  de  quibus  contractum  est,  et  in  qui- 
bus  Iffisio  contigit,  eodem,  in  loco,  sive  alibi  sitae  sint.  Nee  intererit,  uirum 
laesio  circa  res  ipsas  conligerit,  veluti  pluris  minorisve,  quam  eequum  est, 
errore  justo  distractas,  an  vero  propter  neglectasolemnia  in  loco  contractus 
desiderata.  Si  tamen  contractus  implementum  non  in  ipso  contractus  loco 
fieri  debeat,  sed  ad  locum  alium  sit  destinatum,  non  loci  contractus,  sed  im- 
plementi  leges  spectandas  esse  ratio  suadet :  ut  ita,  secundum  cujus  loci 
jura  implementum  accipere  debuit  contractus,  juxta  ejus  etiam  leges  resol- 
vatur.  Boullenois  says,  that  Jurists  distinguish  four  things  in  contracts. 
(1.)  Substantiala  contractuum  ;  (2.)  Naturalia  contraotuum  ;  (3.)  Acci- 
dentalia  contractuum  ;  (4.)  Solemnia  contractuum.  He  says  ;  lis  appel- 
lant substantiala  contractuum,  tout  ce  qui  sert  a  la  composition  inl6rieure 
des  contrats  ;  c'est-a-dire,  tout  ce  qui  est  de  I'essence  determinant  la  nature 
de  chaque  acte,  et  sans  quoi  il  ne  seroit  pas  un  tel  acte.  Substantialia 
sunt,  quae  ita  formam  et  essentiam  uniuscujusque  actus  constituunt,  ut 
sine  iis  talis  actus  esse  non  possit,  cum  forma  dat  unicuique  esse  id,  quod 
est.  Suivant  cette  definition,  le  consentement  des  Parties  dans  tons  les 
contrats,  la  chose,  et  les  prix  de  la  chose  dans  un  contrat  de  vente,  perti- 
nent ad  substantialia  contractuum  et  ad  speciem  contractus  constituendam  ; 
et  elles  sont  tellement  necessaires,  intrinsiques  et  constilutives  d'un  contrat, 
que  sine  iis  actus  qui  geritur,non  valeat.  Naturalia  contractuum,  ce  sont 
les  suites  et  les  engagements  qui  fluent  et  derivent  de  la  nature  et  de  Tes- 
p^ce  des  contrats,  dont  il  s'agit.  Naturalia  contractuum  dicuntur  ea,  quae 
pendent  et  manant  a  natura  et  potestate  cujusque  actus  ;  sed  ejus  formam 
non  constituunt.  Telle  est  la  garaiitie  dans  la  vente.  Mais  par  rapport  a 
ces  engagements  qui  dtrivent  des  contrats,  on  en  dis.tingue  de  deux  sortes. 
II  y  en  a,  quae  sunt  interna,  intrinseca,  et  inseparabilia;  c'cst-a-dire,  qui 
sont  lies  et  attaches  a  chaque  espt'ce  de  contrats,  et  qui  sont  propres  a 


400  CONFLICT   OF   LAWS.  [CH.  VIIL 

as  to  the   nature   of  the  contract  ;  by  which  is  meant 
those  qualities,  which  properly  belong  to  it,  and  by  law 


chacun  de  ces  contrats,  suivant  la  differente  nature,  dont  ils  sont.  Quae 
naturae  contractus  cohaerent,  et  sunt  veluti  propriae  possessiones,  propriae 
affectiones  ab  essentialibuscujusque  contractus  principii  senatag.  Telle  est, 
dans  un  contrat  de  vente,  la  n<^cessit6  que  le  domaine  de  la  chose  vendue, 
soil  transf6r6  k  1'  Acqu^reur  ;  et  k  cet  6gard  on  ne  peut  sesoustraire  aces 
choses  ;  on  ne  pourroit  pas  en  effet  stipuler,  que  le  domine  de  la  chose 
vendue  ne  passeroit  pas  a  Tacqu^reur;  et  ii  y  en  a  qui  ne  naissent  que  de 
I'usage  ordinaire  ou  on  est  d'en  convenir,  et  qui,  a  raison  de  ce,  sont  tou- 
jours  presumes,  etre  convenus  par  les  Parties.  Quseexconsuetudine  etiam 
insunt  contractibus,  quae  consuetudo  in  naturam  quasi  contractus  tran- 
siil ;  et  on  les  appelle,  externa  et  separabilia.  Telle  estla  garantie  defait 
dans  une  cession,  et  a  cet  ^gard  on  peut  y  d^roges,  les  Parties  peuvent  sti- 
puler qu'il  n'y  aura  d'autre  garantie  que  celle  que  1'  on  appelle  garantie  de 
droit.  Accidenlalia  contractus,  ce  sont  les  choses,  qui  ne  sont  point  de  la 
substance  constitutive  de  1'  acte,  qui  ne  fluent  et  ne  d^rivent  point  de  sa 
nature  et  de  son  espece,  et  ne  tnmbent  point  en  convention  ordinaire  ;  mais 
qui  ne  se  rencontrent  dans  les  contrats  que  parceque  les  parties  en  coa- 
viennent.  Accidentalia  contractus  ea  sunt,  quae  neque  substantiam  con- 
tractuum  constituunt,  neque  ex  natura  et  potestate  contracujs  dimanant,  sed 
pro  voluntate  contrahentium,  adjici  contractibus  solent,  veluti  varia  pacta. 
Je  voudrois  ajouter,  et  encore  celles,  qui  ne  sont  requises  que  par  des  dis- 
positions 16gales,  k  la  verite,  mais  pures  locales  comme  la  necessity  de  don- 
ner  caution  pour  la  garantie  d'un  contrat,  laquelle  a  lieu  dans  certains  en- 
droits.  Enfin,  il  y  a,  solemnia  contractuum  ;  et  on  en  distingue  de  deux 
sortes,  solemnia  intrinseca,  et  solemnia  extrinseca.  fSolemnia  inirinseca 
sunt  ea.  quae  insunt  in  ipsa  forma  cujusque  actus,  neque  separari  ab  ea 
possunt;  telles  sont  les  choses  qui  appertiennent  i  la  preuve  atii  I'authen- 
ticiie  de  I'acte,  et  qui  comme  telles  sont  partie  de  ce  qui  constitue  I'eireet 
I'existence  de  cet  acte ;  aussi  sont-elles  appellees  par  quelques-uns  sub- 
staiitialia  contractuum.  Solemnia  extrinseca  sunt  ea,  qua;  actui  per  se  for- 
mam  habenti,  et  ultra  conventionem  contrahentium  sed  ad  ipsam  convenlio- 
nem  roborandam,  extrinsecus  accedunt,  et  ce  sont  les  choses,  qui  n'appar- 
tenant  en  rien  a  la  composition  intrinsique  de  I'acte,  sont  seuleinent  requi- 
ses, post  actum  originatum,  pour  lui  procurer  son  ex6cuti(m.  La  solem- 
nity intrinsique  est  tellement  n^cessaire,  que  si  on  I'omet,  I'acte  n'est  pas 
acte,  il  n'a  nul  6lre,  nulle  existence  ;  I'omission  vitiat  et  corrumpii  actum  ; 
raison  pour  laquelle  on  la  place  volontiers  inter  subslantialia  contrnciuum. 
Mais  h.  regard  de  la  solcmnitc  extrinsique,  il  n'en  est  pas  toujours  de 
meme,  aliqnando  obmissa  impedit  executionem  ex  omni  parte.  1  Houlle- 
nois,  Observ.  23,  p.  446  to  p.  448.  See  also  2  Burge,  ('om  on  Col.  and 
For.  Law,  Pt.  2,  ch.  9,  p.  848,  849,  850  ;  3  Burge,  Comm.  on  Col.  and 


CH.  VIII.]  FOREIGN    CONTRACTS.  401 

or  custom  always  accompany  it,  or  inhere  in  it.^  For- 
eign jurists  are  accustomed  to  call  such  qualities  Natu- 
ralia  coiiiractas?  Ea  enim,  qucc  audoritate  Icgis  vel  consue- 
tiidims  contracium  comitantur,  cidem  adherent,  Natumlia  a 
Dodoribus  appcUaiitiir.  Lex  enim  altera  est  quasi  natiira, 
et  in  naturam  transit.  Atqiie  quoad  mduralia  contradmun 
etiani  forenses  statuta  lodcontradds  ohservare  debcnt?  Thus, 
whether  a  contract  be  a  personal  obligation,  or  a  real 
obligation ;  whether  it  be  conditional,  or  absolute ; 
whether  it  be  the  principal,  or  the  accessary  ;  whether 
it  be  that  of  principal  or  surety ;  whether  it  be  of  limit- 
ed, or  of  universal  operation ;  these  are  points  properly 
belonging  to  the  nature  of  the  contract,  and  are  depend- 
ent upon  the  law  and  custom  of  the  place  of  the  con- 
tract, whenever  there  are  no  express  terms  in  the  con- 
tract itself,  which  otherwise  control  them.  By  the  law 
of  some  countries,   there  are   certain  joint  contracts. 


For.  Law,  Pt.  2,  ch.  20,  p.  758,  759,  762,  763  ;  Don.  v.  Lippman,  5 
Clark  &  Fin.  1,  12,  13. 

1  Pothier,  as  well  as  other  jurists,  distinguish  between  the  essence,  the 
nature,  and  the  accidents  of  contracts  ;  the  former  includes  whatever  is 
indispensable  to  the  constitution  of  it ;  the  next,  whatever  is  included  in  it, 
without  being  expressly  mentioned  by  operation  of  law,  but  is  capable  of  a 
severance  without  destroying  it  ;  and  the  last,  those  things  which  belong 
to  it  only  by  express  agreement.  Without  meaning  to  contest  the  propri- 
ety of  this  division,  I  am  content  to  include  the  two  former  in  the  single 
word,  nature,  as  quite  conformable  to  our  English  idiom.  Cujas  also 
adopts  the  same  course.  See  Pothier,  Oblig.  n.  5.  See  also  2  Boulle- 
nois,  Observ.  46,  p.  460,  461,  462  ;  Bayu  v.  Vavasseur,  10  Martin,  R.61 ; 

Merlin,  Repertoire  Convention,  ^  2,  n.  6,  p.  357  ;  Rodenburg,  De  Div.  Stat. 

lit.  2,ch.  5,  1^  16  ;  2  BouUenois,  App'x.  50  ;  1  Boullenois,  688  ;  3  Burge, 

Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  848  to  p.  851. 

a  1  Boullenois,  Observ.  23,  p.  446  ;  2  Boullenois,  Observ.  46,  p.  460, 

461 ;  Voet,  De  Stat.  \  9,  ch.  10,  ^  10,  p.  287  ;  Id.  p.  325,  edit.  1661 ;  Her- 

tiu3,  De  Collis.  Leg.  Tom.  1,  ^0,  p.  127  ;  Id.  p.  179,  180,  edit.  1716  ; 

post,  ^  301  f. 
3  Lauterback,  Diss.  104,  Pt.  3,  n.  58,  cited  2  Boullenois,  Observ.  46, 

p.  460. 

34* 


402  CONFLICT    OF  LAWS.  [CH.  VIIL 

which  bind  eacli  party  for  the  whole,  in  solido  ;  and  there 
are  other  joint  contracts,  where  the  parties  are,  under 
circumstances,  bound  only  for  several  and  distinct  por- 
tions.^ In  such  case  the  law  of  the  place  of  the  con- 
tract regulates  the  nature  of  the  contract,  in  the  absence 
of  any  express  stipulations.-  These  may,  therefore,  be 
said  to  constitute  the  nature  of  the  contract.^ 


1  4  Burge,  Comment,  on  Col.  and  For.  Law,  Pt.  2  ch.  15,  ^  4,  p.  722 
to  p.  735  ;  post,  ^  322. 

2  Pothier  on  Oblig.  n.  261  to  268  ;  Van  Leeuwen,  Comment.  B.  4,  ch. 
4,  ^  1  ;  Fergusson  v.  Flower,  16  Martin,  R.  312  ;  2  Boullenois,  Observ. 
46,  p.  463;  Code  Civil  of  France,  art.  1197,  1202,  1220,  1222  ;  Id.  Code 
de  Coram,  art.  22,  140.  One  may  see,  how  strangely  learned  men  will 
reason  on  subjects  of  this  nature,  by  consulting  Bouellenois.  He  puts  the 
case  of  a  contract  made  in  a  country,  where  all  parties  would  be  bound  in 
solido,  and  by  the  law  of  their  own  domicil,  they  would  be  entitled  to  the 
benefit  of  a  division,  and  vice  versa  ;  and  asks,  What  law  is  to  govern  ? 
In  each  case  he  decides,  that  the  law  should  govern,  which  is  most  favor- 
able to  the  debtor.  "  Ainsi,  les  obliges  solidaires  ont  contracie  sous  une 
loi,  qui  leur  est  favorable  ;  j'embrasse  cette  loi ;  elle  leur  est  contraire, 
j'embrasse  la  loi  de  leur  domicile."  2  Boullenois,  Observ.  46,  p.  463, 464. 
See  also  Bouhier,  ch.  21,  ^  198,  199. 

3  See  Henry  on  Foreign  Law,  39.  Pothier  on  Obligations,  n.  7,  has 
explained  the  meanins  of  the  words,  the  nature  of  the  contract,  in  the  fol- 
lowing manner.  "Things  which  are  only  of  the  nature  of  the  contract 
are  those,  which,  without  being  of  the  essence,  form  a  part  of  it,  though 
not  expressly  mentioned  ;  it  being  of  the  nature  of  the  contract,  that  they 
shall  be  included  and  understood.  These  things  have  an  intermediate 
place  between  those,  which  are  of  the  essence  of  the  contract,  and  those, 
which  are  merely  accidental  to  it,  and  differ  from  both  of  them.  They  dif- 
fer from  those,  which  are  of  the  essence  of  the  contract,  inasmuch  as  the 
contract  may  subsist  without  them,  and  they  may  be  excluded  by  the  ex- 
press agreement  of  the  parties ;  and  they  differ  from  things,  which  are 
merely  accidental  to  it,  inasmuch  as  they  form  a  part  of  it  without  being 
particularly  expressed,  as  may  be  illustrated  by  the  following  examples. 
In  the  contract  of  sale  the  obligation  of  warranty,  which  the  seller  con- 
tracts with  the  purchaser,  is  of  the  nature  of  the  contract  of  sale;  therefore 
the  seller,  by  the  act  of  sale,  contracts  this  obligation,  though  the  parties 
do  not  express  it,  and  there  is  not  a  word  respecting  it  in  the  contract;  but 
as  the  obligation  is  of  the  nature  and  not  of  the  essence  of  the  contract  of 
sale,  the  contract  of  sale  may  subsist  without  it  :  and  if  it  is  agreed,  that 


CH.  VIII.]  FOREIGN    CONTRACTS.  403 

§  264.  An  illustration  may  be  taken  from  a  case  often 
put  by  the  civilians.  By  the  law  of  some  countries  a 
warranty  is  implied  in  all  cases  of  sale  ;  by  that  of  oth- 
ers, it  is  not.  Suppose  a  contract  of  sale  is  made  in  any 
of  the  former  countries,  by  parties  domiciled  in  any  of 
the  latter  countries.  If  the  contract  is  to  be  executed 
in  the  country  where  it  is  made,  a  warranty  will  be  im- 
plied, as  an  incident  arising  from  the  nature  of  the  con- 
tract ;  if  it  is  to  be  executed  in  the  place  of  the  domicil 
of  the  parties,  for  reasons,  which  we  shall  presently  see, 
no  warranty  will  be  implied.'     By  the  civil  law,  there 


the  seller  shall  not  be  bound  to  warranty,  such  agreement  will  be  valid, 
and  the  contract  will  continue  a  real  contract  of  sale.  It  is  also  of  the  na- 
ture of  the  contract  of  sale,  and  as  soon  as  the  contract  is  completed  by  the 
consent  of  the  parties,  although  before  delivery,  the  thing  sold  is  at  the 
risk  of  the  purchaser ;  and  that,  if  it  happens  to  perish  without  the  fault  of 
the  seller,  the  loss  falls  upon  the  purchaser,  who  is,  notwithstanding  the 
misfortune,  liable  for  the  price  ;  but  as  that  is  only  of  the  nature,  and  not 
of  the  essence  of  the  contract,  the  contrary  may  be  agreed  upon.  When 
a  thing  is  lent  to  be  specifically  returned  [commodatur.]  it  is  of  the  nature 
of  the  contract  that  the  borrower  shall  be  answerable  for  the  slightest  negli- 
gence in  respect  to  the  articles  lent.  He  contracts  this  obligation  to  the 
lender  by  the  very  nature  of  the  contract,  and  without  any  thing  being  said 
about  it.  But  as  this  obligation  is  of  the  nature,  and  not  of  the  essence  of 
the  contract,  it  may  be  excluded  by  an  express  agreement,  that  the  bor- 
rower shall  only  be  bound  to  act  with  fidelity,  and  shall  not  be  responsi- 
ble for  any  accidents  merely  occasioned  by  his  negligence.  It  is  also  of 
the  nature  of  this  contract,  that  the  loss  of  the  thing  lent,  when  it  arises 
from  inevitable  accident,  falls  upon  the  lender.  But  as  that  is  of  the  nature, 
and  not  of  the  essence  of  the  contract,  there  may  be  an  agreement  to  charge 
the  borrower  with  every  loss,  that  may  happen  until  the  thing  is  restored. 
A  great  variety  of  other  instances  might  be  adduced  from  the  different 
kinds  of  contracts.  Those  things,  which  are  accidental  to  a  contract,  are 
such,  as,  not  being  of  the  nature  of  the  contract,  are  only  included  in  it  by 
express  agreement.  For  instance,  the  allowance  of  a  certain  time  for  pay- 
ing the  money  due  ;  the  liberty  of  paying  it  by  instalments  ;  thai  of  pay- 
ing another  thing  instead  of  it  ;  of  paying  to  some  other  person  than  the 
creditor  ;  and  the  like,  are  accidental  to  the  contract;  because  they  are  not 
included  in  it  without  being  particularly  expressed." 

1  Pothier,  Oblig.  n.  7  ;2  Boullenois,  Obser.  4G,  p.  475,  476  ;  Id.  460 to 


404  CONFLICT    OF   LAWS.  [CH.  VIIL 

is  an  implied  warranty,  as  to  the  quality  and  soundness 
of  goods  sold  ;  by  the  common  law,  there  is  not.^  A 
sale  of  goods  in  England  would  be  governed  by  the 
common  law ;  a  sale  in  a  foreign  country,  under  the 
civil  law,  would  be  governed  by  that  law,  as  to  this  im- 
plied warranty.  Boullenois  lays  down  this  as  one  of 
his  fundamental  rules,  in  the  interpretation  of  contracts. 
Whenever  (says  he)  the  controversy  respects  mova- 
bles, of  which  an  immediate  delivery  is  made,  the  law 
of  the  place  of  the  contract  is  to  govern ;  adopting  on 
this  point  the  doctrine,  although  not  the  reasoning  of 
Colerus.  Consuetudo  si  qiddem  loci,  ubi  negotium  geritiir, 
ita  suUntrat  ipsimi  contradum  ;  ut  secundum  leges  loci  in- 
telligatur  actus  fuisse  celehraius,  qiiamvis  ea  de  re  nihil  fu- 
erit  expressiim? 

§  265.  Another  illustration  may  be  borrowed  from  an 
actual  decision  under  the  common  law.  By  the  law  of 
England  an  acceptance  of  a  bill  of  exchange  binds  the 
acceptor  to  payment  at  all  events.  By  the  law  of  Leg- 
horn, if  a  bill  is  accepted,  and  the  drawer  fails,  and  the 
acceptor  has  not  sufficient  effects  of  the  drawer  in  his 
hands  at  the  time  of  acceptance,  the  acceptance  becomes 
void.  An  acceptance  in  Leghorn  is  governed  by  this 
latter  law  ;  and  under  such  circumstances  it  has  been 
held  void,  and  not  obligatory  upon  the  acceptor.^ 

§  266.  Secondly,  the  obligation  of  the  contract,  which, 


463  ;  Code  Civil  of  France,  art.  1135  ;  Voet.  De  Statut.  ^  9,  ch.  2,  §  10, 
p.  209,  edit.  1715  ;  Id.  p.  325,  edit.  1661  ;  3  Burge,  Comm.  on  Col.  and 
For. Law,  Pt.  2,  ch.  20,  p.  769,  770. 

1  Poihier,  Pand.  Lib.  19,  tit.  1,  art.  5,  ^  48  to  51 ;  2  Black.  Comm.  451  ; 
2  Kent,  Comm.  Lect.  39,  p.  478  to  481,  3d  edition. 

2  2  Boullenois,  Observ.  46,  p.  475,  476, 

3  Burrows  v.  Jemimo,  2  Str.  R.  733  ;  2  Eq.   Abr.  526  ;  S.  P.  Pardes 
sus,  Tom.  5,  art.  1495,  p.  270,  271. 


CH.  VIII.]  FOREIGN   CONTRACTS.  405 

though  often  confounded  "with,  is  distinguishable  from, 
its  nature.^  The  obligation  of  a  contract  is  the  duty  to 
perform  it,  whatever  may  be  its  nature.  It  may  be  a 
moral  obligation,  or  a  legal  obligation,  or  both.  But 
"when  we  speak  of  obligation  generally,  we  mean  legal 
obligation,  that  is,  the  right  to  performance,  which  the 
law  confers  on  one  party,  and  the  corresponding  duty 
of  performance,  to  which  it  binds  the  other."  This  is 
what  the  French  jurists  call  Le  lien  du  control  (the  legal 
tie  of  the  contract,)  Onus  conventionis,  and  what  the  ci- 
vilians generally  call  Vinculum  juris,  or  Vinculum  obliga- 
tionis?  The  institutes  of  Justinian  have  thus  defined  it. 
Obligatio  est  juris  vinculum,  quo  necessitaie  adstringimur  ali- 
cujus  rei solvendce,  secimdum  nostrcB  civitatis  jura}  Aeon- 
tract  may  in  its  nature  be  purely  voluntary,  and  possess 
no  legal  obligation.  It  may  be  a  mere  naked  pact  (nu- 
dum pactum.)  It  may  possess  a  legal  obligation  ;  but 
the  laws  may  limit  the  extent  and  force  of  that  obliga- 
tion in  fersonam,  or  in  rem.  It  may  bind  the  party  per- 
sonall}^  but  not  bind  his  estate  ;  or  it  may  bind  his 
estate,  and  not  bind  his  person.  The  obligation  may  be 
limited  in  its  operation  or  duration  ;  or  it  may  be  revo- 
cable or  dissoluble  in  certain  future  events,  or  under 
peculiar  circumstances.^ 

§  266  a.  An  illustration  may  be  readily  seen  in  the 


1  See  2  Boullenois,  Observ.  46,  p.  454,  460,  462,  463,  464  ;  3  Burge, 
Com.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  764,  765. 

2  See  3  Story,  Comm.  on  Constitution,  ^  1372  to  1379  ;  Ogdenv.  Saun- 
ders, 12  Wheaton,  213;  Pothier  on  Oblie:.  art.  1,  n.  1,  p.  173,  174,  175. 

3  2  Boullenois,  Observ.  46,  p.  458,  459,  460. 

4  Inst    Lib   3,  til.  14;  Pothier,  Pandect.  Lib.  44,   tit.  7,   P.   1.  art.   1, 
§  1  ;   Pothier,  Oblig.  n.  173,  174. 

5  See  2  Boullenois,  Observ.  46,  p.  452;  454  ;  Code  Civil  of  France, 
art.  1168  to  1196. 


406  CONFLICT    OF   LAWS.  [CH.  VIII. 

common  case  of  a  Scotch  heritable  bond.  It  is  well 
known,  that  by  the  common  law  of  England  a  bond, 
which  is  also  a  charge  on  land,  as  for  example,  a  bond, 
accompanying  a  mortgage  of  land  as  a  security,  is  pri- 
marily, in  a  contest  between  the  heir  and  the  adminis- 
trator, a  charge  on  the  personal  estate,  and  of  course 
the  heir  has  a  right  in  equity  to  be  relieved  therefrom, 
so  far  as  there  are  personal  assets  to  discharge  the  bond.^ 
In  the  Scotch  law  the  same  rule  prevails  as  to  movable 
debts,  which  are  primarily  and  properly  chargeable  upon 
the  personal  assets.^  But,  as  to  heritable  bonds,  a  differ- 
ent rule  prevails ;  and  they  are  primarily  a  charge 
on  the  real  estate  of  the  debtor.^  Now,  suppose  a  ques- 
tion should  arise  in  England,  as,  indeed,  it  has  arisen, 
whether  in  the  case  of  a  Scotch  movable  debt,  the  heir, 
upon  payment  of  it  was  entitled  to  be  exonerated  there- 
from, and  to  receive  the  amount  out  of  the  personal  as- 
sets in  England.  Upon  principle  it  should  seem  clear, 
that  he  would  be  entitled  to  the  relief  and  exoneration ; 
for  the  heir,  having  by  the  law  of  the  country,  where 
the  land  lies,  a  right  to  such  relief  and  exoneration, 
would  have  the  same  right  in  regard  to  the  same  debt 
in  every  other  country,  since  it  properly  belongs  to  the 
nature,  obligation,  and  interpretation  of  the  contract.^ 


1  I  Story  on  Eq.  Jurisp.  ^  571,  574  ;  Earl  of  Winchelsea  v.  Garetty, 
2  Keen,  R.  293,  309. 

2  Earl  of  Winchelsea  v.  Garetty,  2  Keen,  R.  293,  309,  310  ;  post, 
^  487,  §  520. 

3  Post,  ^  486  to  489,  ^  529  ;  Drummond  v.  Drummond,  6  Bro.  Pari.  R. 
by  Tbmlins,  550. 

4  Earl  of  Winchelsea  v.  Garretty,  2  Keen,  R.  293,  308,  309,  310.— 
Upon  this  occasion  Lord  Langdale  said  ;  "  By  the  law  of  England,  the 
personal  estate  is  the  primary  fund  for  the  payment  of  all  debts  contracted 
by  the  deceased  person,  whose  estate  it  was.  By  the  law  of  Scotland  mo- 
vable debts  are  primarily  and  properly  chargeable  upon  the  personal  estate. 


CH.  VIII.]  FOREIGN   CONTRACTS.  407 

On  the  other  hand  a  Scotch  heir,  paying  a  heritable 
bond,  would  be  entitled  to  no  such  relief  or  exoneration, 


The  creditor  may,  indeed,  enforce  payment  against  the  real  estate  in  the 
hands  of  the  heir ;  but  if  he  does  so,  the  heir  is  entitled  to  relief  against 
the  executors  out  of  the  personal  estate  ;  in  other  words,  according  to  the 
law  of  Scotland,  the  real  estate,  though  subject  to  the  payment  of  movable 
debts,  is  only  a  subsidiary  fund  for  the  purpose  of  payment.  Payment  by 
the  heir  does  not  extinguish  the  debt,  but  vests  in  him  the  right  to  recover 
the  amount  against  the  personal  estate  and  constitutes  him  a  creditor 
against  the  personal  estate  ;  and  whether  he  can  enforce  payment  against 
the  personal  estate,  which  is  to  be  distributed  according  to  the  laws  of  ano- 
ther country,  which  makes  the  personal  estate  the  primary  fund  for  the 
payment  of  debts,  is  the  question.  Prima,  facie  there  would  seem  to  be  no 
difficulty  ;  the  heir,  having  by  the  law  of  the  country  in  which  the  land 
lies,  a  right  to  reliefer  exoneration,  would  seem  to  be  at  liberty  to  make 
that  right  available  in  a  country,  where  the  personal  estate  is  the  primary 
fund  for  the  payment  of  all  debts.  But  it  is  objected,  that  in  all  the  opi- 
nions, upon  which  the  finding  of  the  Master  rests,  it  has  been  assumed, 
that  the  law  of  domicil  makes  no  difference  ;  whereas  it  it  is  clear,  that 
the  domicil  determines  the  law  by  which  the  personal  estate  is  to  be  dis- 
tributed ;  and  that,  although  it  be  true,  that  in  England,  the  personal  es- 
tate must  be  applied  in  exoneration  of  the  English  heir  of  real  estate,  yet, 
tiiat  the  right  of  the  heir  to  be  exonerated  is  founded  on  the  law  peculiar 
to  England,  and  that  a  foreign  heir  of  foreign  lands  is  not  entitled  to  the 
same  relief  as  an  English  heir  of  English  lands.  The  law  of  England,  it 
is  said,  affords  no  relief  to  foreign  real  estate  out  of  English  personal  es- 
tate ;_and  although  the  law  of  Scotland  regulates  the  administration  of  the 
real  estate,  and  provides  that  the  real  estate,  if  applied  in  payment  of  per- 
sonal debts,  shall  be  exonerated  out  of  the  personal  estate,  the  proposition 
must  be  limited  to  personal  estate,  of  which  the  distribution  is  regulated 
according  to  the  law  of  Scotland,  and  consequently  to  the  personal  estate 
of  debtors  domiciled  in  Scotland.  Several  cases  were  cited.  They  suffi- 
ciently establish  the  propositions,  which  are  not  disputed  on  either  side; 
and  Drummond  v.  Drummond  establishes,  that  a  Scotch  heir  is  ultimately 
liable  to  pay  heritable  debts,  which  have,  in  the  first  instance,  been  paid 
out  of  the  personal  estate  distributable  according  to  the  law  of  England  ; 
but  no  case  has  occurred,  in  which  it  has  been  decided,  that  the  Scotch 
heir,  having  paid  movable  debts,  is  entitled  to  be  relieved  out  of  the  per- 
sonal estate  distributable  according  to  the  law  of  England  ;  and  that  is  the 
question  here.  The  personal  estate  is  taken  by  the  administrator,  accord- 
ing to  the  law  of  England,  subject  to  the  payment  of  all  the  debts  of  the 
intestate.  The  real  estate  is  taken  by  the  heir,  according  to  the  law  of 
Scotland,  subject  to  the  payment  of  all  movable  debts,  but  with  a  right  of 


408  CONFLICT    OF   LAWS.  [CH.  VIIL 

because  the  debt  is  primarily  by  the  local  law  a  charge 
on  the  real  estate  ;  ^  and  if  such  heritable  bond  should 


relief  out  of  the  personal  estate,  and  subject  to  the  payment  of  all  herita- 
ble debts  without  such  right  of  relief.  As  to  the  heritable  debts,  in  respect 
of  which  there  is  no  such  right  of  relief,  the  heir  is  not  entitled  to  the 
benefit  of  the  English  law,  which  makes  the  personal  estate  subject  to  the 
payment  of  all  debts.  The  Scotch  law,  which  makes  the  heir  ultimately 
liable  to  the  payment  of  such  debts,  and  which  g-overns  the  distribution  of 
the  real  estate,  prevails  in  favor  of  the  persons  entitled  to  the  personal  es- 
tate distributable  according  to  the  law  of  England.  As  to  personal  debts, 
in  respect  of  which  there  is  such  a  right  to  relief,  the  English  law  subjects 
the  personal  estate  to  all  debts  ;  the  Scotch  law  relieves  the  real  estate,  as 
far  as  it  can  consistently  with  the  claims  of  the  creditors.  The  heir,  by 
paying,  satisfies  the  creditor,  but  at  the  same  time  acquires  for  himself  a 
ri"ht  of  demand  against  the  executor  ;  he  may,  if  he  pleases,  take  an 
assignation  for  the  debt,  and  make  it  available  ;  but  that  is  not  necessary, 
because,  without  any  assignation,  his  own  claim  to  relief  subsists  and  con- 
stitutes him  a  creditor  against  the  personal  estate.  Under  these  circum- 
stances the  question  does  not  appear  to  me  to  be  fully  stated,  when  it  is 
said  to  be,  whether  a  foreign  heir  of  foreign  lands  is  entitled  to  the  same 
relief,  as  an  English  heir  of  English  lands.  The  case  is,  that  a  foreign 
heir  of  foreign  lands  is,  in  respect  of  those  lands,  subsidiarily  liable  to  pay 
debts,  to  which  the  personal  estate,  distributable  according  to  the  law  of 
Enoland,  is  primarily  liable  ;  and  that,  having  paid  the  debt,  he  is  by  the 
law  of  the  country,  in  which  the  land  lies,  constituted  a  creditor  upon  the 
personal  estate  distributable  according  to  the  law  of  that  country.  And  it 
is  under  these  circumstances,  and  without  reference  to  English  tenures,  or 
the  title  to  exoneration,  which  an  English  heir  may  possess,  that  the  ques- 
tion arises,  whether  the  subsidiary  debtor,  or  the  person,  who  by  the  law 
of  a  foreign  country  is  constituted  surety  for  the  payment  of  debts,  prima- 
rily chargeable  on  another  fund,  and  paying  the  debts  by  force  of,  and 
according  to  the  law,  which  constitutes  him  a  creditor  upon  that  other  fund, 
is  or  is  not  entitled  to  make  his  title  as  to  creditors  available  in  another 
country,  where  the  personal  estate  is  distributable,  and  where  the  law 
makes  the  personal  estate  primarily  liable  to  the  payment  of  all  debts. 
And,  upon  consideration  of  the  case,  I  am  of  opinion,  that  the  right  of  re- 
liefer demand  against  the  personal  estate,  which  in  the  administration  of 
the  real  estate  by  the  law  of  Scotland  is  vested  in  the  heir,  who  has  paid 
movable  debts,  is  capable  of  being  made  available  in  England,  where  the 
personal  estate  is  the  primary  fund  for  the  payment  of  all  debts." 

1  Drummond  v.  Drummond,  G  Bro.  Pari.  R.  by  Tomlins,  550  ;  post, 
^486  to  ^489,  §529;  Elliot  v.  Lord  Minto,  6  Madd.  R.  16;  Earl  of 
Winchelsea  v.  Garrety,  2  Keen,  R.  293,  308  to  310. 


CH.  VIII.]  FOREIGN    CONTRACTS.  409 

be  paid  by  an  English  administrator  out  of  the  personal 
assets,  he  would  be  entitled  to  reimbursement  from 
the  Scotch  heir.' 

§  267.  It  would  be  easy  to  multiply  illustrations  under 
this  head.  Suppose  a  contract  by  the  law  of  one  country 
to  involve  no  personal  obligation,  (as  was  supposed  to 
be  the  law  of  France  in  a  particular  case  which  came 
in  judgment,^)  but  merely  to  confer  a  right  to  proceed 
in  rem  ;  such  a  contract  would  be  held  everywhere  to 
involve  no  personal  obligation  whatsoever.  Suppose, 
by  the  law  of  a  particular  country,  a  mortgage  for 
money  borrowed,  should,  in  the  absence  of  any  express 
contract  to  repay,  be  limited  to  a  mere  repayment  there- 
of out  of  the  land,  a  foreign  court  would  refuse  to  en- 
tertain a  suit  giving  to  it  a  personal  obligation.  Sup- 
pose a  contract  for  the  payment  of  the  debt  of  a  third 
person,  in  a  country  where  the  law  subjected  such  a 
contract  to  the  tacit  condition,  that  payment  must  first 
be  sought  against  the  debtor  and  his  estate ;  that  would 
limit  the  obligation  to  a  mere  accessorial  and  secondary 
character  ;  and  it  would  not  be  enforced  in  any  foreign 
country,  except  after  a  compliance  with  the  requi- 
sitions of  the  local  law.  Sureties,  indorsers,  and  gua- 
rantees are,  therefore,  liable  everywhere,  only  according 
to  the  law  of  the  place  of  their  contract.^  Their  obli- 
gation, if  treated  by  such  local  law,  as  an  accessorial 
obligation,  will  not  anywhere  else  be  deemed  a  princi- 
pal obligation.^     So,  if  by  the   law  of  the  place  of  a 


1  Robertson  on  Personal  Succession,  209  to  214. 

2  Melan  v.  Fitz  James,  1  Bos.  &  Pull.  138. 

3  Aymar  v.  Sheldon,  12  Wend.  R.  439. 

4  See  Pothier  on  Oblig.  n.  407  ;  Trimbey  v.  Vignier,  6  Carr.  &  Payne, 
25  ;  S.  C.  1  Bing.  N.  C.  151,  159  ;  4  Moore  &  Scott,  695  ;  post,  §  314, 

CONFL.  35 


410  CONFLICT    OF   LAWS.  [CH.  VIIL 

contract,  its  obligation  is  positively  and  ex  diredo  ex- 
tinguished after  a  certain  period  by  the  mere  lapse  of 
time,  it  cannot  be  revived  by  a  suit  in  a  foreign  country, 
whose  laws  provide  no  such  rule,  or  apply  it  only  to 
the  remedy.^  To  use  the  expressive  language  of  a 
learned  judge,  it  must  be  shown,  in  all  such  cases,  what 
the  laws  of  the  foreign  country  are,  and  that  they 
create  an  obligation  which  our  laws  will  enforce.^ 

§  267  a.  This  doctrine  was  fully  recognized  in  a 
recent  case,  where  the  question  was  as  to  the  rights  of 
parties,  growing  out  of  various  bonds,  executed  in  a 
State  which  was  governed  by  the  common  law,  some  of 
the  bonds  being  designed  as  security  or  indemnity  to  a 
surety  on  the  other  bonds.  The  Court  said  ;  "  These 
different  bonds  were  entered  into  in  States  of  the  Union 
where  the  common  law  prevails,  and  consequently 
the  rights  and  liabilities  of  the  parties  are  to  be  mea- 
sured by  that  system  of  jurisprudence  ;  and  whatever 
the  plaintiff  (the  assignee  of  the  surety)  would  be  en- 
titled to  recover  (upon  the  indemnity  bond)  in  a  court 
of  law  or  equity  in  the  State  where  the  transaction 
originated,  he  is  entitled  to  in  this  Court,  in  the  present 
form  of  action."  ^ 

§  268.  Let  us  take  another  case,  which  has  actually 
passed  into  judgment.  By  the  common  law,  heirs  are 
not  bound  by  the  simple  contracts  of  their  ancestor,  but 


316  a  ;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  764  to 
p.  766. 

1  See  Le   Roy  v.  Crowninshield,  2  Mason,  R.  151  ;  Polhier,   Oblig. 
n.  636  to  639  ;  Voet,  ad  Pand.  Lib.  4,  tit.  1,  §  29,  ad  finem. 

2  Lord  Chief  J.  Eyre,  Melan  v.  Duke  of  Fitz  James,  1  Bos.  and  Pull. 
141. 

3  Mr.  Justice  Bullard,  in  King  v.  Harman's  Heirs,  6  Louis.  R.  607, 
617. 


CH.  VIII.]  FOREIGN    CONTRACTS.  411 

only  by  instruments  under  seal,  declaring  them  ex- 
pressly bound.  By  the  law  of  Louisiana,  the  heirs  are 
ipso  facto  bound  by  such  simple  contracts  of  their  an- 
cestors.i  If  a  simple  contract  is  made  in  a  State  go- 
verned by  the  common  law,  it  cannot  be  enforced  in 
Louisiana  against  the  heirs  of  the  debtor,  although  they 
are  domiciled  in  Louisiana.-  The  remedy  must  be 
sought  through  the  instrumentality  of  an  administra- 
tion of  the  assets  there.^ 

§  268  a.  To  this  head,  of  the  obligation  of  contracts, 
may  also  be  appropriately  referred  the  consideration  of 
the  nature  and  extent  of  the  obligation  of  contracts,  in 
respect  to  their  dissolubility  or  indissolubility  in  point 
of  duration.  This  topic  has  been  already  incidentally 
discussed  in  examining  the  nature  and  obligation  of 
the  contract  of  marriage,  which  indeed  is  truly  a  con- 


1  Brown  r;  Richardson,  13  Martin,  R.  202.  —  Mr.  Justice  Porter,  in 
delivering  the  opinion  of  the  Court  in  this  case  said  ;  "We  recognize  the 
distinction  made  by  the  plaintiffs'  counsel  between  the  right  and  the  remedy, 
and  agree  with  him,  that  contracts  should  be  expounded  according  to 
the  laws  of  the  country  where  they  are  made,  and  enforced  according  to 
the  regulations  which  prevail  where  the  debtor  is  found.  It  is  that  dis- 
tinction, which  gives  the  defendants  immunity  in  this  case.  For  in  order 
to  ascertain  who  is  debtor,  we  must  recur  to  the  laws  of  the  country 
where  the  contract  was  made  ;  and  if  these  laws  do  not  make  persons 
standing  in  the  character  of  the  appellants  liable,  under  the  circumstances 
now  in  proof,  they  cannot  be  made  so  by  a  change  of  jurisdiction.  It  is 
true,  that,  according  to  our  jurisprudence,  the  heir  is  obliged  to  pay  the 
debts  of  the  ancestor,  if  he  accepts  the  succession  unconditionally  ;  but  it 
does  not  follow,  that  the  same  rule  exists  in  other  countries.  An  embar- 
rassment is  created  in  considering  the  case,  from  a  feeling,  which  it  is 
difficult  to  check,  that  there  exists  something  like  a  natural  obligation  on 
the  child  to  pay  the  parent's  debts  ;  particularly  if  he  takes  any  of  his 
property.  But,  that  obligation  is,  in  fact,  nothing  but  the  creature  of 
positive  law,  and  is  of  course  subject  to  all  the  modifications  which  the 
policy  of  different  States  may  induce  them  to  adopt."     Id.  p.  208. 

2  Brown  v.  Richardson,  13  Martin,  R.  202. 

3  Ibid. 


412  CONFLICT   OF   LAWS.  •  [CH.  VIII. 

tract ;  but,  properly  speaking,  it  is  something  more,  an 
institution  of  civil  society.-^  It  lias  been  often  urged, 
especially  in  regard  to  the  contract  of  marriage,  that 
indissolubility  is  of  its  very  essence ;  and  that,  what  is 
of  the  essence  of  a  contract,  must  be  judged  of  ac- 
cording to  the  Lex  loci  contractus.  It  has  been  re- 
marked by  an  eminent  Judge  that  this  is  somewhat  a 
vague,  and  for  its  vagueness  a  somewhat  suspicious, 
proposition,  and  that  there  are  many  other  things, 
which  may  just  as  well  be  reckoned  of  the  essence  of 
the  contract,  as  this.  He  afterwards  added ;  "  The  fal- 
lacy of  the  argument,  '  that  indissolubility  is  of  the 
essence,'  appears  plainly  to  be  this  ;  it  confounds  inci- 
dents with  essence ;  it  makes  the  rights  under  a  con- 
tract, or  flowing  from  and  arising  out  of  it,  parcel  of 
the  contract  ;  it  makes  the  mode  in  which  judicatures 
deal  with  those  rights,  and  with  the  contract  itself,  part 
cff  the  contract ;  instead  of  considering,  as  in  all  sound- 
ness of  principle  we  ought,  that  the  contract  and  all 
its  incidents  and  the  rights  of  the  parties  to  it,  and  the 
wrongs  committed  by  them  respecting  it,  must  be  dealt 
with  by  the  Courts  of  the  country  where  the  parties 
reside,  and  where  the  contract  is  to  be  carried  into  ex- 
ecution." ~  These  considerations  are  certainly  entitled 
to  great  weight ;  but  they  only  show  the  intrinsic  diffi- 
culty of  laying  down  any  general  rules  on  such  com- 
plicated subjects,  which  shall  be  of  universal  applica- 
tion. It  will  probably  be  found,  that  the  proposition, 
that  a  contract  cannot  be  dissolved,  except  in  the  man- 
ner and  under  the  circumstances  prescribed  by  the  law 


1  Ante,  ^  108  a  ;  ^  218  to  230  ;  Id.  ^  226  c,  note. 

2  Lord  Brougham  in  Warrcnder  v.  Warrender,  9  Bligli,  R.  114 ;  ante, 
§  226  c,  note. 


CH.  VIII.]  FOREIGN    CONTRACTS.  413 

of  the  place  where  it  was  made,  if  true  at  all,  must  be 
asserted  with  many  qualifications  and  exceptions.  Con- 
tracts of  marriage,  and  other  contracts  of  a  peculiar 
nature,  may  perhaps  require  a  different  exposition  in 
this  respect  from  other  ordinary  pecuniary  contracts. 
And  even  if  a  contract  be  indissoluble  by  the  Lex  loci 
contractus,  except  in  a  special  mode,  it  may  neverthe- 
less be  thought  reasonable,  that  that  rule  should  not 
prevail  upon  a  change  of  domicil,  as  to  an  act  of  the 
parties  done  in  the  latter  place,  where  another  mode  is 
prescribed,  or  allowed  for  its  dissolution.^  But  of  this 
we  shall  speak  hereafter.^ 

§  269.  Cases  sometimes  occur,  in  which  the  tribunals 
of  a  foreign  country  are  called  upon  to  decide  upon  the 
law  of  another  country,  where  the  contract  is  made ; 
and  they  by  mistake  misinterpret  that  law.  In  such  a 
case  if  they  discharge  the  parties  from  the  obligation  of 
the  contract,  in  consequence  of  such  misinterpretation 
of  the  foreign  law,  that  discharge  will  not  be  held 
obligatory  upon  the  courts  of  the  country  where  the 
contract  was  made."*'  A  recent  case  has  occurred  on 
this  subject.  A  bill  of  exchange,  drawn  in  France,  and 
indorsed  there,  and  accepted  and  payable  in  England 
at  a  banker's,  was  passed  by  an  indorsee  in  discharge 
of  an  antecedent  debt ;  and  upon  presentment  for  pay- 
ment, it  was  dishonored,  and  the  banker's  clerk  by 
mistake  cancelled  the  acceptance,  and  then  wrote  on  it, 
"  cancelled  by  mistake."  Afterwards  the  indorser,  who 
had  so  passed  the  bill  in  discharge  of  his  debt,  cited  all 
the  parties,  and  among  others,  the  creditor  and  holder 


1  W^arrender  v.  Warrender,  9  Bligh,  114  ;  ante,  §  226  c,  note. 

2  See  post,  ^  351  a  ;  ante,  §  226  a,  note. 

3  Novelli  V.  Rossi,  2  Barn.  &  Adolph.  757. 

35* 


414  CONFLICT    OF   LAWS.  [CH.  VIII. 

of  the  bill,  before  the  tribunals  of  France,  who  decreed, 
that  the  cancellation  operated  as  a  suspension  of  legal 
remedies  against  the  acceptor,  and  consequently  dis- 
charged the  other  parties,  the  indorsers,  as  well  as  the 
drawer.  A  suit  was  afterwards  brought  by  the  "cre- 
ditor against  the  debtor-indorser  in  England ;  and  it  was 
held,  that  the  courts  of  France  had  mistaken  the  law  of 
England,  as  to  the  effect  of  the  cancellation ;  and  that 
the  plaintiff  was  entitled  to  recover  against  the  defend- 
ant the  full  amount  of  the  debt,  notwithstanding  the 
decree  in  the  French  courts.^ 

§  270.  Thirdly.  The  interpretation  of  contracts. — 
Upon  this  subject  there  would  scarcely  seem  to  be 
any  room  for  doubt  or  disputation.  There  are  certain 
general  rules  of  interpretation  recognized  by  all  na- 
tions, which  form  the  basis  of  all  reasoning  on  the  sub- 
ject of  contracts.  The  object  is  to  ascertain  the  real 
intention  of  the  parties  in  their  stipulations ;  and  when 
the  latter  are  silent,  or  ambiguous,  to  ascertain,  what  is 
the  true  sense  of  the  words  used,  and  what  ought  to 
be  implied  in  order  to  give  them  their  true  and  full 
effect.^     The  primary  rule  in  all  expositions  of  this  sort 


1  ]%>ve]Ii  V.  Rossi,  2  Barn.  &  Adolph.  757. 

2  See  Lord  Brougham's  striking  remarks  on  this  subject  already  cited 
Ante,  §  226  c.  In  Prentiss  v.  Savage,  13  IMass.  R.  23,  Mr.  Chief  Justice 
Parker  said  :  "  It  seems  to  be  an  undisputed  doctrine,  with  respect  to  per- 
sonal contracts,  that  the  law  of  the  place  where  they  are  made  shall 
govern  in  their  construction  ;  except  when  made  with  a  view  to  perform- 
ance in  some  other  country,  and  then  the  law  of  such  country  is  to  prevail. 
This  is  nothing  more  than  common  sense  and  sound  justice,  adopting  the 
probable  intent  of  the  parties  as  to  the  rule  of  construction.  For  when  a 
citizen  of  this  country  enters  into  a  contract  in  another,  with  a  citizen  or 
subject  thereof,  and  the  contract  is  intended  to  be  there  performed,  it  is 
reasonable  to  presume,  that  both  parties  had  regard  to  the  law  of  the 
place  where  they  were,  and   that  the  contract  was  shaped  accordingly. 


CH.  VIII.]  FOREIGN   CONTRACTS.  415 

is  that  of  common  sense,  so  well  expressed  in  the  Di- 
gest. In  conveniionikis  contrahentmm  voluntas,  potius 
qiiam  verha,  spcdari  ^jlacuif}  But  in  many  cases  the 
words  used  in  contracts  have  different  meanings  at- 
tached to  them  in  different  places  by  law  by  custom. 
And  where  the  words  are  in  themselves  obscure,  or 
ambiguous,  custom  and  usage  in  a  particular  place  may 
give  them  an  exact  and  appropriate  meaning.  Hence, 
the  rule  has  found  admission  into  almost  all,  if  not  into 
all,  systems  of  jurisprudence,  that,  if  the  full  and  entire 
intention  of  the  parties  does  not  appear  from  the  words 
of  the  contract,  and  if  it  can  be  interpreted  by  any 
custom  or  usage  of  the  place  where  it  is  made,  that 
course  is  to  be  adopted.  Such  is  the  rule  of  the  digest. 
/Semper  in  stipiilationibiis,  et  in  cceteris  contradihis  id 
scqitinmr,  quod  actum  est.  Ant  si  non  appareat,  quod 
actum  est,  erit  consequcns,  lit  id  scquamur,  quod  in  regione 


And  it  is  also  to  be  presumed,  when  the  contract  is  to  be  executed  in  any 
other  country,  than  that  in  which  it  is  made,  that  the  parties  take  into 
their  consideration  the  law  of  such  foreign  country.  This  latter  branch  of 
the  rule,  if  not  so  obviously  founded  upon  the  intention  of  the  parties  as 
the  former,  is  equally  well  settled  as  a  principle  in  the  law  of  contracts." 
Mr.  Chancellor  Walworth,  in  Chapman  v.  Robertson,  (6  Paige,  R.  627, 
630,)  used  equally  strong  language.  "  It  is  an  established  principle," 
(said  he)  "  that  the  construction  and  validity  of  personal  contracts,  which 
are  purely  personal,  depend  upon  the  laws  of  the  place  where  the  contract 
is  made,  unless  it  was  made  with  reference  to  the  laws  of  some  other 
place  or  country  where  such  contract  in  the  contemplation  of  the  parties 
thereto  was  to  be  carried  into  effect  and  performed."  2  Kent,  Com.  Lect. 
39,  p.  457,  4.58,  3d  edit. ;  3  Surge,  Com.  on  Col.  and  For.  Law,  Pt.  2, 
ch.  20,  p.  752  to  p.  764. 

1  Dig.  Lib.  50,  tit.  16,  1.  210.  — Many  rules  of  interpretation  are  found 
in  Polhier  on  Obligations,  n.  91  to  102  ;  in  Fonblanque  on  Equity,  B.  1, 
ch.  6,  ^11  to  20,  and  notes;  1  Domat,  Civil  Law,  B.  1,  tit.  1,  ^  2  ; 
1  Powell  on  Contracts,  370  et  seq.  ;  Merlin,  Repertoire,  Convention,  ^  7, 
p.  366. 


416  CONFLICT    OF   LAAVS.  [CH.   VIII. 

in  qua  actum  est,  freqiientatiir}  Conservanda  est  consue- 
tiido  regionis  et  civitatis  (says  J.  Sande)  id>i  contractimi 
est.  Omnes  enim  adiones  nostrce  (si  non  aliter  fiicrit  pro- 
visum  inter  contraJientes)  inter pretationem  rccipiiint  a  con- 
suetudine  loci,  in  quo  contrahitiir?  Usage  is,  indeed,  of 
so  mucli  authority  in  the  interpretation  of  contracts, 
that  a  contract  is  understood  to  contain  the  customary 
clauses,  although  they  are  not  expressed,  according  to 
the  known  rule,  In  contractihiis  tacite  veniiint  ea,  quce 
sunt  moris  et  consuetiidinis?  Thus,  if  a  tenant  is  by  cus- 
tom to  have  the  outgoing  crop,  he  will  be  entitled  to  it, 
although  not  expressed  in  the  lease.^  And  if  a  lease  is 
entirely  silent,  as  to  the  time  of  the  tenant's  quitting, 
the  custom  of  the  country  will  fix  it.^  By  the  law  of 
England,  a  month  means  ordinarily  in  common  con- 
tracts, as  in  leases,  a  lunar  month ;  but  in  mercantile 
contracts  it  means  a  calendar  month."  A  contract, 
therefore,  made  in  England  for  a  lease  of  land  for 
twelve  months,  would  mean  a  lease  for  forty-eight 
weeks  only."^  A  promissory  note,  to  pay  money  in 
twelve  months,  would  mean  in  one  year,  or  in  twelve 
calendar  months.®     If  a  contract  of  either  sort  were 


1  Dig.  Lib.  50,  lit.  17,  1.  34  ;  1  Doraat,  Civil  Law,  B.  1,  tit.  1,^2, 
n.  9;  2  Boullenois,  Observ.  46,  p.  490;  3  Burge,  Comm.  on  Col.  and 
For.  Law,  Pt.  2,  ch.  20,  p.  775,  776. 

2  J.  Sande,  Op.  Comm.  de  Reg.  Jur.  1.  9,  p.  17. 

3  Polhier,  Oblig.  n.  95  ;  Merlin,  Repertoire,  Convention,  ^  7;  2  Kent, 
Comm.  Lect.  39,  p.  555,  3d  edit, 

4  Wigglesworth  v.  Dallison,  Doug.  R.  201,  207. 
a  Webb  V.  Plumer,  12  B.  and  Aid.  746. 

c  2  Black.  Comm.  141;  Catesby's  Case,  6  Coke,  R.  62;  Lacon  v. 
Hooper,  6  T.  R.  224  ;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2, 
ch.  20,  p.  776,  777. 

7  Ibid. 

8  Chitty  on  Bills  (8th  edit.  1833,)  p.  406  ;  Lang  v.  Gale,  1  M.  &  Selw. 


CH.  VIII.]  FOREIGN    CONTRACTS.  417 

rec|inred  to  bo  enforced  in  a  foreign  country,  its  true 
interpretation  must  be  everywhere  the  same,  that  it  is, 
according  to  the  usage  in  the  country,  where  the  con- 
tract was  made. 

§  271.  The  same  word,  too,  often  has  different  signi- 
fications in  different  countries.  Thus,  the  term  nscmce, 
which  is  common  enough  in  negotiable  instruments, 
means,  in  some  countries,  a  month,  in  others,  two  or 
more  months,  and  in  others,  half  a  month.  A  note 
payable  at  one  usance  must  be  construed  everywhere 
according  to  the  meaning  of  the  word  in  the  country, 
where  the  contract  is  made.^  There  are  many  other 
cases  illustrative  of  the  same  principle.  A  note  made 
in  England  for  100  pounds,  would  mean  100  pounds 
sterling.  A  like  note  made  in  America,  would  mean 
100  pounds  in  American  currency,  which  is  one  fourth 
less  in  value.  It  would  be  monstrous  to  contend,  that 
on  the  English  note,  sued  in  America,  the  less  sum  only 
ousht  to  be  recovered ;  and  on  the  other  hand,  on  the 
American  note,  sued  in  England,  that  one  third  more 
ought  to  be  recovered.- 

§  271  a.  Another  illustration  may  easily  be  sug- 
gested, which  is  not  quite  so  simple  in  its  circumstances. 
Suppose  a  contract  is  made  in  England  between  two 
Ene-lishmen  for  the  sale  of  lands  situated  in  Jamaica; 
and  the  vendee  agreed  to  give  £20,000  for  the  lands. 


111  ;  Cockell  v.  Gray,  3  B.  &  Bing.  187  ;  Leffingwell  v.  White,  1  Johns. 
Cas.  99. 

1  Chiuy  on  Bills,  (8th  edit.  1833,)  p.  404,  405.  See  also  2  Boiilienois, 
Observ.  46,  p.  447. 

2  Sec  also  Powell  on  Contracts,  376  ;  2  BouUenois,  Observ.  46,  p.  498, 
503  ;  Henry  on  Foreign  Law,  Appendix,  233 ;  Pardessus,  Droit,  Comni. 
art.  1492  ;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  772, 
773  ;  post,  §  272  a,  ^  307,  308. 


418  CONFLICT    OF    LAWS.  [CH.  VIIL 

without  specifying  in  what  currency.  The  difference 
between  Jamaica  pounds  currency  and  English  sterling 
pounds  currency,  by  the  par  of  exchange,  exclusive  of 
any  premium  on  bills  of  exchange  on  England,  is  forty 
per  cent.  Consequently,  £28,000  Jamaica  currency 
would  constitute  only  £20,000  sterling.  The  question 
might  then  arise,  according  to  which  currency  the  pur- 
chase-money is  to  be  paid.  In  the  absence  of  all  ex- 
pressions and  circumstances,  from  which  a  different 
intention  may  be  inferred,  the  interpretation  of  the 
contract  would  be,  that  it  was  payable  in  the  currency 
of  the  country,  where  the  contract  was  made,  and  not 
in  that  of  the  situs  of  the  property.^  Another  illustra- 
tion may  be  in  case  of  a  sale  of  lands  situated  in  one 
country,  and  the  contract  made  in  another,  and  the  sale 
to  be  of  a  certain  number  of  acres  for  a  gross  price,  or 
at  a  specific  price  per  acre,  the  mode  of  measuring  an 
acre,  or  the  contents  thereof,  being  different  in  different 
countries.  The  question  might  arise,  whether  the  acre 
was  to  be  according  to  the  measurement  in  the  one 
country,  or  in  the  other.  Now,  upon  this  very  point 
different  opinions  and  judgments  have  been  held  by 
different  jurists  and  tribunals  on  the  continent  of 
Europe ;  some  holding,  that  the  Zcx  loci  contractus 
ought  to  govern,  and  others,  that  the  Lex  situs  ought 
to  govern  the  admeasurement.^  Choppin  has  reported 
a  case,  where  the  highest  tribunal  of  Orleans  held,  that 
the  laws  of  the  place  of  the  contract  should  determine 
the  admeasurement  of  the  acre.  But  he  disapproves  of 
it,  and  says  ;  Justior  tamcn  est  diversa  opinio^  vcnditi  agri 
mensiiram  ex  lege  2^(^t(^^idam   situs  prcEdionim    non  Joci 


1  2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  9,  p.  860,  861. 

2  2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  9,  p.  858,  859. 


CH.  VIII.]  "foreign  contracts.  419 

'padce  vcndUionis}  John  Voet  holds  the  same  opinion  ; 
Si  res  immoUUs  ad  certam  mensiiram  deheantiir,  et  ea  pro 
hcorum  divcrsitate  varia  sit,  in  diibio  solvi  dehent  jiixta 
mensuram  loci,  in  quo  sites  sunt.~  In  respect  to  movables 
he  holds  the  opposite  opinion,  that  they  are  governed 
by  the  law  of  the  place  of  the  contract.  Dumoulin 
holds  the  same  opinion  as  to  immovables ;  that  they 
are  governed  by  the  Lex  situs.  JJnde  stantibus  mensiiris 
diversis,  si  fundus  venditur  ad  mensuram,  vel  affirmatur, 
vel  mensuratur,  non  continuo  debet  inspici  mensura,  quce 
viget  in  loco  contractus,  sed  in  dubio  debet  attendi  mensura 
loci,  in  quo  fundus  debet  metiri,  et  tradi,  et  executio  fieri?^ 
He  admits,  that  other  jurists  differ  from  him,  and  that 
other  circumstances  may  vary  this  interpretation.  Et 
ita  tenendum,  nisi  ex  aliis  circumstantiis  constet,  de  qua 
mensura  senserint}  Indeed,  he  denies,  that  any  uni- 
versal rule  can  be  established.^  The  same  doctrine, 
that  the  Lex  situs  ought  to  govern  in  the  like  cases, 
would  seem  to  be  favored,  if  not  positively  established, 
in  the  jurisprudence  of  England  and  America.^ 

§  272.  The  general  rule,  then,  is,  that  in  the  inter- 
pretation of  contracts,  the  law  and  custom  of  the  place 
of  the  contract  are  to  govern  in  all  cases  where  the  lan- 
guage is  not  directly  expressive  of  the  actual  intention 
of  the  parties,  but  it  is  to  be  tacitly  inferred  from  the 


1  Choppini  Opera,  De  Feudis  Andeg.  Tom.  2,  Lib.  2,  tit.  3  n.  10, 
p.  132,  133,  edit.  1611;  2  Boullenois,  Observ.  46,  p.  497;  2  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  9,  p.  858,  859. 

2  J.  Voet,  Lib.  46,  tit.  3,  n.  8,  p.  949  ;  2  Burge,  Comm.  Pt.  2,  ch.  9, 
p.  859  ;  2  Boullenois,  Observ.  46,  p.  497. 

3  Molin.  Oper.  Comm.  ad  Cod.  Lib.  1,  tit.  1,  1.  1,  Tom.  3,  Conclus.  de 
Statut.  p.  554. 

*  Ibid.  5  Ibid.;  post,  ^  274  a. 

6  Ante,  §  270. 


420  CONFLICT    OF   LAWS.  [CH.  VIIL 

nature,  and  objects,  and  occasion  of  the  contract.^  The 
rule  has  been  fully  recognized  in  the  Courts  of  Com- 
mon Law ;  and  it  has  been  directly  decided  by  those 
courts,  that  the  interpretation  of  the  contract  must  be 
governed  by  the  laws  of  the  country  where  the  con- 
tract is  made.^  And  the  rule  is  founded  in  wisdom, 
sound  policy,  and  general  convenience.  Especially  in 
interpreting  ambiguous  contracts,  ought  the  domicil  of 
the  parties,  the  place  of  execution,  the  various  provi- 
sions and  expressions  of  the  instrument,  and  other  cir- 
cumstances, implying  a  local  reference,  to  be  taken 
into  consideration.^  Thus,  Gothofredus  says ;  Consiie- 
tudo  regionis  scqiiemiir,  et  icleo  conducere,  concedere,  contra- 
Jiere,  et  quidvis  agere  fro  modo  regionis  in  dulio  presumi- 
tur.  Nam  siciit  natiira  non  separetur  a  suhjedo,  ita  nee  a 
consueto.  Quod  est  de  consiictiidine  Jmhetiir  pro  pacio.^ 
Burgundus  is  more  full  and  pointed  to  this  point,  as 
we  have  already  seen.s     John  a  Sande   expresses  the 


1  See  the  opinion  of  the  Court,  delivered  by  Mr.  Justice  Martin,  in  the 
case  of  Depau  v.  Humphreys,  20  Martin,  R.  1,  8,  9,  13,  22,  23,  24 ;  Bent 
V.  Lauve,  3  Louis.  Ann.  R.  88  ;  Mr.  Justice  Porter,  in  the  case  of  Morris 
V.  Eves,  11  Martin,  R.  730;  Courtois  v.  Carpenter,  1  Wash.  Cir.  R. 
376. 

2  Trimby  v.  Vignier,  1  Ring.  New  Cases,  151,  159  ;  post,  ^  316  a  ;  De 
la  Vega  v.  Vianna,  1  Barn.  &  Adolp.  R.  284  ;  British  Linen  Company  v. 
Drummond,  10  Barn.  &  Cressw.  903  ;  Bank  of  United  States?;.  Donally, 
8  Peters,  R.  361,  372 ;  Pope  v.  Nickerson,  3  Story,  R.  484  ;  Harrison  v. 
Sterry,  5  Cranch,  289  ;  Wilcox  v.  Hunt,  13  Peters,  R.  378,  379.  —  We 
shall  presently  see,  that  the  same  rule  is  adopted  in  the  interpretation  of 
wills.  See  Lansdowne  v.  Lansdowne,  2  Bligh,  R.  60,  88,  89,  91,  and 
cases  there  cited.  Holmes  r.  Holmes,  1  Russ.  &  Mylne,  G60,  662  ;  Chap- 
man V.  Robertson,  6  Paige,  R.  627,  630  ;  post,  ^  479  a  to  479  n. 

3  Ante,  ^  237.  See  Lansdowne  v.  Lansdowne,  2  Bligh,  Pari.  R.  60, 
87  ;  post,  ^  479  m  to  479  n. 

4  Gothofred.  ad  Pand.  Lib.  50,  tit.  17,  1.  34  ;  Le  Brun,  Trait6  de  la 
Communaut6,  Liv.  1,  eh.  2,  §  46. 

5  Ante,  ^  237 ;  2  Boullenois,  Observ.  46,  p.  451. 


CH.  VIII.]  FOREIGN   CONTRACTS.  421 

same  doctrine  in  these  words.  Qiiando  verba  sunt  duUa 
et  amhigiia,  tunc  hwpicimus,  quod  verisimiliter  a  contrahen- 
tihus  actum  sit,  aid  quid  Testator  scnscrit} 

§  272  «.  One  of  the  simplest  cases,  to  illustrate  the 
rule,  is  the  case  of  a  promissory  note,  made  and  dated 
in  a  particular  country,  payable  in  a  currency  which 
has  the  same  name,  but  is  of  a  different  value  in  differ- 
ent countries.  The  question  is,  what  currency  is  pre- 
sumed to  be  intended  by  the  parties  ?  The  answer 
would  seem  to  be  equally  certain,  the  currency  of  the 
country  where  it  is  payable.  Suppose,  then,  a  promis- 
sory note  dated  in  Dublin,  and  thereby  the  maker  pro- 
mises to  pay  to  the  payee,  or  order,  one  hundred  pounds 
in  forty  days  after  date ;  and  the  note  is  afterwards 
sued  in  England ;  the  question  would  arise,  whether 
the  note  meant  a  hundred  pounds  English  currency,  or 
Irish  currency.  This  would  depend  upon  another  ques- 
tion, where  the  note  was  payable,  as  no  place  of  pay- 
ment was  named,  in  England  or  in  Ireland.  Now,  by 
the  rules  of  law  in  the  interpretation  of  all  such  con- 
tracts, when  no  other  place  of  payment  is  named,  the 
contract  is  treated  as  a  contract  made  in  and  governed 
by  the  law  of  the  place  where  it  is  made  and  dated, 
and  therefore  it  would  be  interpreted  to  mean  one  hun- 
dred pounds  Irish  currency,  because  payable  there,  and, 
indeed,  payable  everywhere,  where  the  maker  should 
afterwards  be  found.^  The  converse  rule  would  be  ap- 
plied, if  the  note,  though  drawn  in  the  same  terms,  and 
dated  at  Dublin,  were  upon  its  face  made  payable  in 
London.^ 


1  J.  a  Sande,  Op.  Comm.  De  Reg.  Juris.  1.  9,  p.  17. 

2  Kearney  v.  King,  2  Barn.  &  Aid.  R.  301  ;  Sprov/le  r.  Legoe,  1  B. 
&  Cresw.  16. 

3  Ibid.  ;  ante,  §  271;  post,  ^317;  3  Comm.  on  Col.  and  For.   Law, 
CONFL.  36 


422  CONFLICT    OF   LAWS.  [CH.    VIIL 

§  273.  Boullenois,  while  he  admits  the  general  pro- 
priety of  the  rule,  Locus  contractus  regit  actum,  contests 
its  universality.^  He  seems  to  think,  and  some  other 
jurists  have  adopted  the  same  opinion,  that  where  a 
contract  is  made  between  foreigners  belonging  to  the 
same  country,  who  are  not  domiciled,  but  are  merely 
transient  persons,  in  the  place  where  the  contract  is 
made,  it  ought  to  be  governed  by  the  law  of  their  own 
country ;  and  that  this  rule  applies,  a  fortiori,  where 
they  are  ignorant  of  the  laws  of  the  place  where  the 
contract  is  made.^  Without  undertaking  to  say,  that 
the  exception  may  not  be  well  founded  in  particular 
cases,  as  to  persons  merely  in  transitu,  it  may  unhesita- 
tingly be  said,  that  nothing  but  the  clearest  intention 
on  the  part  of  foreigners,  to  act  upon  their  own  domes- 
tic law,  in  exclusion  of  the  law  of  the  place  of  the 
contract,  ought  to  change  the  application  of  the  gene- 
ral rule.^  And,  indeed,  even  then,  if  the  performance 
of  the  contract  is  to  be  in  the  same  country  where  it  is 
made,  it  seems  difficult,  upon  principle,  to   sustain  the 


Pt.  2,  ch.  20,  p.  772,   773  ;  2  Burge,  Comra.  Pt.  2,  ch.  9,  p.  8G0,  861, 
862. 

1  2  Boullenois,  Obsorv.  46,  p.  456,  489,  490. 

2  2  Boullenois,  Observ.  46,  p.  455  to  p.  458 ;  Id.  p.  495,  496,  497,  501, 
502,  503,  and  note.  —  Boullenois  (in  p.  494,  495)  says  :  To  return  to  our 
question  upon  ihe  interpretation  of  contracts  or  testaments,  I  think  the 
sole  rule,  which  can  be  prescribed,  is  that  of  determining  it  according  to 
the  different  circumstances.  These  different  circumstances  will  lead  us 
sometimes  in  favor  of  the  law  of  the  place  of  the  contract,  sometimes  in 
favor  of  that  of  the  situs,  often  in  favor  of  that  of  the  domicil,  and  often 
in  favor  of  that  where  the  payment  is  to  be  made.  And  hence  he  agrees 
to  Dumoulin's  opinion  in  his  ('ommentary  on  the  Code  Molin.  Comment, 
ad  Cod.  Lib.  1,  til.  1, 1.  1,  Conclus.  de  Statut.  p.  554  ;  ante,  \  263  ;  Bar- 
tol.  Comment,  ad  Cod.  Lib.  1,  tit.  1,1.  1,  n.  13  ;  post,  ^  279  ;  3  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  775,  776,  777. 

^  See  Pardessus,  Droit  Comra.  n.  191,  182;   1  Emerigon,  ch.  4,  ^  8. 


CH.  VIII.]  FOREIGN    CONTRACTS.  423 

exception.  Huberus  has  applied  the  same  rule  to  those 
who  are  domiciled,  and  to  those  who  are  merely  com- 
morant,  in  the  place  of  the  contract ;  that  the  law  of 
the  place  of  the  contract  is  to  govern.^ 

§  274.  Grotius  has  also  affirmed  the  doctrine  in  a  gene- 
ral form.  "If"  (says  he)  "a  foreigner  makes  a  bar- 
gain with  a  native,  he  shall  be  obliged  by  the  laws  of 
his  State ;  because  he,  who  enters  into  a  contract  in  any 
place,  is  a  subject  for  the  time  being,  and  must  be  obe- 
dient to  the  laws  of  that  place."  Quare  etiamsi peregri- 
niis  cum  cive  paciscatur,  tenehitur  ilUs  legihus  ;  quia  qui  in 
loco  aliquo  contrahit,  tanqiiam  siibditus  temporarius  legihus 
hci  suhjicituy?  Emerigon  follows  Grotius,  and  adopts 
his  very  language.  "  A  stranger,"  (says  he,)  "  who 
contracts  in  the  territories  of  a  State,  is  held  as  a  tem- 
porary subject  of  the  State,  subject  to  the  laws  thereof. 
L^etranger,  qui  contracte  dans  les  terres  dhin  etat,  est  temi, 
comme  sujet  a  temps  de  cet  etat,  de  se  soumettre  aux  lots  du 
pays?  Lord  Stowell,  in  a  passage  in  one  of  his  most 
celebrated  judgments,  has  refused  to  acknowledge  igno- 
rance of  the  law  of  a  foreign  country  to  be  any  founda- 
tion to  release  a  party  from  the  obligation  of  a  contract 
made  there."  ^ 

§  274  a.  Dumoulin,  while  he  admits  the  general  rule 
to  be,  that  the  law  and  custom  of  the  place,  where  a 
contract  is  made,  ought  generally  to  govern  in  the  in- 
terpretation of  the  contract,  at  the  same  time  denies  that 
it  is  of  universal  application.     On  the  contrary,  he  holds 


1  Huberus,  Lib.  1,  tit.  3,  De  Confl.  Leg.  ^  2,  3  ;  ante,  ^261,  note.  See 
Livennorfe's  Diss.  p.  46,  ^  42. 

2  Gnilius,  B.  2,  ch.  11,  ^  5,  n.  2. 

3  Emerigon,  Assur.  ch.  4,  ^  8,  Tom.  1,    p.  124,  125.     See  also  Casa- 
regis,  Disc.  179,  n.  60,  61,  62. 

4  Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.  R.  60,  61. 


424  CONFLICT    OF   LAWS.  [CH.  VIIL 

that  there  are  cases,  in  which  it  ought  to  be  disregarded. 
^^ Et  animadvciiendiim"  (says  he,)  "  quod  doctor es  pessi- 
me  intelUgunt,  d.  I,  quia  pidant  riiditer  et  indisiincte,  quod 
deheat  iU  inspici  locus  et  consuetudo,  iibi  fit  contractus,  et 
sicjtis  in  loco  contractus.  Quod  est  falsiini  ;  quinimo  jus 
est  in  tacita  et  verisimiliter  mente  contralmitium.  Fac,  ci- 
vem  Tuhingensem  peregre  eiintem  per  iirhem  Italice,  vendere 
ihi  domnni  suam  Tiihingw  vel  AiigustcB,  an  teneatur  dare 
duos  fidejussor es  evictionis,  et  de  duph,  prout  prohat  statutum 
hci  contractus.  Et  omnes  dicimt,  quod  sic,  in  quo  errant, 
mn  intelligentes  praxim,  et  hie  non  perspicientes  mentem,  d. 
I.,  qucB  est  practica.  Ideo  contrariiim  dicendwn  ;  quia  ven- 
ditor non  est  subdiius  statutis  Italice,  et  statutum  illud  non 
concernit  rem,  sed  personam,  et  sic  non  potest  ligare  coder os, 
qui  non  censentur  sese  ohligare  ad  statutum,  quod  ineunt. 
Ideo  non  tenetur  cavere,  nisi  secundiim  morem  siii  domicilii, 
vel  secu?ndiini  jus  commune  ;  nee  verum  est,  quod  istiid  sta- 
tutem  concernat  solemnitatem  et  modum  contrahendi  Quin- 
imo respicit  effectum,  meritum,  et  decisionem,  et  dicta  lex 
male  allegatur  ad  matenam  primce  conclusionis.  Faciamus 
civem  Tuhingensem  hie  vendere  vicino  domum  Genevce,  vel 
Tigwi  sitam,  uM  sit  statutum,  quod  venditor  fundi  tenetur  de 
duplo  cavere,  per  duos  idoneos  cives,  ne  teneantur  litigare  ex- 
tra forum  suum.  Iste  est  proptius  casus  et  verus,  intellec- 
tus,  d.  I.  in  qud  dicitur  ;  Venditorem  teneri  cavere  secundum 
eonsueiudinem  loci  contractus  ;  quod  est  intelligendum  7ion  de 
loco  contractus  fortuiti,  sed  domicillii,  prout  crebrius  usuvenit, 
immohilia  non  vendi  pcregr^,sedinhco  domicilii.  Lexautem 
debet  adaptari  ad  casus  vel  hypotheses,  qua  solent  frequenter 
accidere :  nee  extendi  ad  casus  raro  accidentes.  Saltern 
quando  contrariiim  apparet  de  rathne  diversitatis,  vel  quan- 
do  sequeretur  captio  ingerentis.  Quia  qud  ratione  dicta  lex, 
excludit  externum  locum  situs  rei,  in  quo  contrahentes  non  ha- 
hent  domicilium  ;  multo  fortius  cxcluditur  locus  fortidtus  eon- 


CH.  VIII.]  FOREIGN    CONTRACTS.  425 

tractus,  in  quo  partes  peregre  transeunf.  Patet :  Quia  quis 
censctur  potiiis  contrahere  in  loco,  in  quo  debet  solvere,  qiiam 
in  loco,  uhifortuiio  transicns  contrahit.  Scd  Jdc  venditor  eo 
ipso  se  ohligat,  soluUonem  et  traditioneni  realem,  per  se,  vel 
per  alkm,  facer e  in  loco,  in  quo  fundus  situs  est :  ergo  ibi 
contraxisse  censetur.  Et  tamen  in  dubio  non  attenditur  con- 
suetudo  loci  contractus.  Quia  venditor  illl  non  siibest,  nee 
ejus  notitiam  habere  prwsumitur,  ergo  mtdto  minus  consuetu- 
do  loci  fortuiti,  quam  magis  ignorat} 

§  275.  Cases,  illustrative  of  the  importance  of  the 
general  rule,  may  be  easily  found  in  the  jurisprudence 
of  modern  nations.  "In  some  countries,"  (says  Boulle- 
nois,)  "the  laws  give  a  certain  sense  and  a  certain 
effect  to  clauses  in  an  instrument,  while  the  laws  of  an- 
other country  give  a  sense  and  effect  more  extensive,  or 
more  restrained.  For  example,  at  Toulouse, the  clause  si 
sine  liberis,  added  to  a  substitution,  means  a  gradual  substi- 
tution ;  and  in  other  places,  it  means  only  a  condition, 
if  other  circumstances  do  not  concur."  ^  The  full  effect 
of  this  example  may  be  felt  only  by  a  civilian.  But  an 
analagous  one  may  be  put  from  the  common  law.  A 
contract  in  England  for  an  estate  there  situate,  or  a 
conveyance  of  such  an  estate,  to  A.,  and  the  heirs  of  his 
body  begotten,  would,  before  the  statute  de  donis,  have 


1  Molin.  Opera,  Comm.  ad  Cod.  Lib.  1.  tit.  1,1.  1,  Conclus.  de  Statut. 
Tom.  3,  p.  554  ;  2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20, 
p.  851,  852;  Id.  p.  858,  859. 

2  2  Boullenois,  Observ.  46,  p.  447,  518,  519.  In  the  French  Law  sub- 
stitution is  either  simple  or  gradual.  It  is  called  simple,  when  one  person 
only  is  substituted  for  another  in  a  donation  ;  as  a  donation  to  A.,  and  if 
he  refuses  or  dies  to  B.  It  is  called  gradual,  when  there  are  several  sub- 
stitutes in  succession  ;  as  a  donation  to  A.,  and  if  he  refuses  or  dies  to  B., 
and  if  B.  refuses  or  dies  to  C,  and  if  C.  refuses  or  dies  to  D.,  &c.  &c. 
Pothier,  Traill  des  Substitutions,  art.  Prelim.  ;  Id.  ^  3,  art.  1.  See  also 
2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  855,  856,  857. 

36* 


426  CONFLICT    OF   LAWS.  [CH.  VIIL 

been  interpreted  to  mean  a  contract  for,  or  a  convey- 
ance of,  a  conditional  fee-simple ;  but  since  that  statute, 
it  would  be  construed  to  be  a  contract  for  or  a  convey- 
ance of  a  fee  tail.*  The  rights  growing  out  of  these  dif- 
ferent interpretations  are  (as  every  common  lawyer 
knows)  exceedingly  different ;  and  to  construe  them 
otherwise,  than  according  to  the  common  law,  would 
defeat  the  intention  of  the  parties,  and  uproot  the  solid 
doctrines  of  law.  The  sense  of  the  terms,  and  the  legal 
effect  of  the  instrument  ought,  and,  it  is  to  be  pre- 
sumed, would  be  everywhere  ascertained  by  the  same 
mode  of  interpretation  wherever  the  point  should  come, 
directly  or  indirectly,  in  judgment,  in  any  foreign  coun- 
try. 

§  276.  The  language  of  marriage  contracts  and  set- 
tlements must,  in  like  manner,  be  interpreted  according 
to  the  law  of  the  place  where  they  are  contracted.  A 
moment's  consideration  would  teach  us  the  inextricable 
confusion,  which  would  ensue  from  disregarding  the 
habitual  construction  put  by  courts  of  law  upon  instru- 
ments of  this  sort,  executed  in  England,  or  in  France, 
and  brought  into  controversy  in  any  other  country. 
The  whole  system  of  interpretation  of  the  clauses  of 
of  marriage  contracts  and  settlements  in  England  is  in 
a  high  degree  artificial ;  but  it  is  built  upon  uniform 
principles,  which  could  not  now  be  swept  away  without 
leaving  innumerable  difficulties  behind.  What  could  a 
foreign  court  do  in  interpreting  the  terms,  heirs  of  the 
hodij^  children,  issue,  connected  with  other  words  of  limit- 
ation, or  description,  in  a  marriage  settlement  or  a 
will  made  in  England  ?     The  intricate  branch  of  Eng- 


»  2  Black.  Coram.  110  to  112. 


CH.  viil]  foreign  contracts.  427 

lish  jurisprudence,  upon  which  the  true  exposition  of 
such  clauses  depends,  has  tasked  and  exhausted  the 
diligence  and  learning  of  the  highest  professional 
minds  ;  and  requires  almost  the  study  of  a  life  to  he 
thoroughly  mastered.^  Probably  the  system  of  inter- 
pretation in  similar  cases  in  France  does  not  involve 
fewer  difficulties,  dependent  upon  the  nice  shades  of 
meaning  of  words  in  different  connections,  and  the  ne- 
cessary complexity  of  matrimonial  rights  and  nuptial 
contracts,  and  prospective  successions.^  The  general 
rule  is  in  no  cases  more  firmly  adhered  to,  than  in  cases 
of  nuptial  contracts  and  settlements,  that  they  are  to 
be  construed  and  enforced  according  to  the  Lex  loci 
contractus? 

§  276  a.  The  same  doctrine  was  fully  recognized  in 
a  recent  case  in  England.  In  that  case  the  parties 
were  domiciled  and  married  in  Scotland,  and  executed 
a  nuptial  contract,  containing  mutual  provisions  for  the 
benefit  of  the  parties  and  their  offspring.  Afterwards 
the  wife,  upon  the  death  of  her  mother  in  England,  be- 
came entitled  to  certain  stock ;  and  the  husband  filed  a 
bill  in  chancery  to  have  the  stock  conveyed  to  him  by 
the  trustee  thereof,  without  a  settlement  being  made 
upon  his  wife  in  regard  thereto.  The  question  was, 
whether  the  wife  was  entitled  to  the  common  equity  to 
a  settlement  out  of  the  stock,  according  to  the  English 
law.  It  appeared,  ihat,  by  the  law  of  Scotland,  acting 
upon  the  interpretation  and  construction  of  the  provi- 


^  See  Fearne  on  Contingent  Remainders,  passim. 

2  See  2  Boullenois,  Observ.   46,   p.  489  to  494,  503,  504,  505,  513  ; 
Martyn  v.  Fabrigas,  Cowper,  R.  174. 

3  Feaubert  v.  Turst,  Prec.  ch.  207  ;  De  Couche  v.  Savatier,  3  Johns. 
Ch.  R.  190. 


428  CONFLICT    OF   LAWS.  [CH.  VIIL 

sions  of  the  nuptial  contract,  the  wife  was  not  entitled 
to  any  such  equity  to  a  settlement.  The  Lord  Chan- 
cellor held,  that  the  Court,  in  administering  the  rights 
of  the  parties  under  that  nuptial  contract,  was  bound 
to  give  the  same  construction  and  effect  to  it  in  Eng- 
land, as  the  Scottish  law  would  give  to  it;  and  he 
therefore  awarded  the  stock  to  the  husband  without 
any  settlement.' 

§  277.  The  same  rule  is  also  universally  acknow- 
ledged in  relation  to  commercial  contracts.^  Where  the 
terms  of  an  instrument,  executed  by  foreigners  in  a 
foreign  country,  are  free  from  obscurity,  it  will  be  con- 
strued according  to  the  obvious  import  of  those  terms, 
unless  there  is  some  proof  that,  according  to  the  law  of 
the  foreign  country,  the  true  interpretation  of  them 
would  be  different.^  But  where  a  particular  interpre- 
tation is  established,  that  must  be  followed.  Indeed, 
the  courts  of  every  country  must  be  presumed  to  be 
the  best  expositors  of  their  own  laws,  and  of  the  terms 
of  contracts  made  with  reference  to  them.  And  no 
court  on  earth,  professing  to  be  governed  by  principle, 
would  assume  the  power  to  declare,  that  a  foreign 
Court  misunderstood  the  laws  of  their  own  country,  or 
the  operation  of  them  on  contracts  made  there.^ 

§  278.  The  remarks  already  suggested  upon  this  rule 
cannot  be  better  enforced,  than  by  a  quotation  from  an 


•  Anstruther  u.  Adair,  2  Mylne  &  Keen,  R.  513,  516.  See  also  Bread- 
albane  v.  Chandos,  cited  in  4  Surge,  Comment,  on  Col.  and  For.  Law, 
App'x,  749,  755. 

2  Pardessus,  Droit  Comm.  Tom.  5,  n.  1491,  1492;  2  Kent,  Comm. 
Lect.  39,  p.  457,  458,  3d  edit. 

3  King  of  Spain  v.  Machado,  4  Russell,  R.  225  ;  post,  ^  286, 

*  Mr.  Chief  .Justice  Marshall,  in  Elmendorf  v.  Tayolr,  10  Wheaton, 
R.  159;  Mr.  Justice  Porter,  in  Saul  i;.  His  Creditors,  17  Martin,  R.  587. 


CH.  VIII.]  FOREIGN   CONTRACTS.  429 

opinion  of  the  late  learned  Mr.  Chief  Justice  Parker. 
"  That  the  laws  of  any  State  cannot  by  any  inherent 
authority,  be  entitled  to  respect  extra-territorially,  or 
beyond  the  jurisdiction  of  the  State  which  enacts  them, 
is  the  necessary  result  of  the  independence  of  distinct 
sovereignties.  But  the  courtesy,  comity,  or  mutual 
convenience  of  nations,  amongst  which  commerce  has 
introduced  so  great  an  intercourse,  has  sanctioned  the 
admission  and  operation  of  foreign  laws  relative  to 
contracts.  So,  that  it  is  now  a  principle  generally  re- 
ceived, that  contracts  are  to  be  construed  and  interpret- 
ed according  to  the  laws  of  the  State  in  which  they 
are  made,  unless  from  their  tenor  it  is  perceived,  that 
they  were  entered  into  with  a  vioAV  to  the  laws  of  some 
other  State.  And  nothing  can  be  more  just  than  this 
principle.  For  when  a  merchant  of  France,  Holland, 
or  England,  enters  into  a  contract  in  his  own  country, 
he  must  be  presumed  to  be  conusant  of  the  laws  of  the 
place  where  he  is,  and  to  expect  that  his  contract  is  to 
be  judged  of  and  carried  into  effect  according  to  those 
laws ;  and  the  merchant  with  whom  he  deals,  if  a  for- 
eigner, must  be  supposed  to  submit  himself  to  the  same 
laws,  unless  he  has  taken  care  to  stipulate  for  a  per- 
formance in  some  other  country,  or  has  in  some  other 
way  excepted  his  particular  contract  from  the  laws  of 
the  country  where  he  is."  ^ 

§  278  a.  Hence  it  is  adopted  by  the  common  law,  as 
a  general  rule  in  the  interpretation  of  contracts,  that 
they  are  to  be  deemed  contracts  of  the  place  where 
they  are  made,  unless  they  are  positively  to  be  per- 
formed or  paid  elsewhere.     Therefore,  a  note  made  in 


1  Blanchard  v.  Russell,  13  Mass.  R.  1,  4,  5. 


430  CONFLICT    OP   LAWS.  [CH.  VIIL 

France,  and  payable  generally,  will  be  treated  as  a 
French  note,  and  governed  accordingly  by  the  laws  of 
France,  as  to  its  obligation  and  construction.  So,  a 
policy  of  insurance,  executed  in  England  on  a  French 
ship  for  the  French  owner,  on  a  voyage  from  one  French 
port  to  another,  would  be  treated  as  an  English  con- 
tract, and,  in  case  of  loss,  the  debt  would  be  treated  as 
an  English  debt.  Indeed,  all  the  rights  and  duties,  and 
obligations  growing  out  of  such  a  policy,  would  be  go- 
verned by  the  law  of  England,  and  not  by  the  law  of 
France,  if  the  laws  respecting  insurance  were  different 
in  the  two  countries.' 

§  279.  It  has  sometimes  been  suggested,  and  espe- 
cially by  foreign  jurists,  that  contracts,  made  between 
foreigners  in  a  foreign  country,  ought  to  be  construed 
according  to  the  law  of  their  own  country,  whenever 
they  both  belong  to  the  same  country.^  Where  they 
belong  to  different  countries,  some  controversy  has 
arisen  as  to  the  point,  whether  the  law  of  the  domicil 
of  the  debtor,  or  that  of  the  creditor  ought  to  prevail.^ 
Where  a  contract  is  made  in  a  country  between  a  citi- 


1  Donn  V.  Lippman,  5  Clark  &  Fin.  1,  18,  19,  20  ;  post,  ^  317. 

2  Ante,  ^  273  ;  2  Boullenois,  Observ.  46,  p.  455  to  p.  458  ;  Id.  p.  495 
to  p.  593.  —  Heriius  seems  to  make  the  following  distinction.  After  ha- 
vinp  stated  the  general  rule  to  be  ;  Si  lex  actui  formam  dal,  inspiciendum 
est  locus  actus,  non  domicilii,  non  rei  sita;  ;  he  adds  ;  Nimirum  valet  haec 
Regula,  etiam  in  extero,  qui  actum  celebrat,  licet  enim  hie  subjectus  revera 
maneat  patriae  suae,  tamcn  illud,  de  acto  primo  est  inteliigendum,  quoad 
actum  vero  secundum  suhditus  illius  loci  sit  temporarius,  ubi  agit,  vel  con- 
trahit.  siiiiulque  ut  forum  ibi  sortiiur,  ila  statulis  lioatur.  Non  valet  si 
exterus  igrioravit  staiutum.  Hertii  Opera,  Tom.  1,  De  CoUis.  Leg.  §  4, 
n.  10,  p.  126,  128  ;  Id.  edit.  1716,  p.  179  to  181. 

3  .See  Fcelix,  Confl  des  Lois,  Revue  Etrang.  et  Franc.  1840,  Tom.  7, 
^  21  to  23,  p  200  to  p.  209  ;  Id.  ^  40  to  50,  p.  46  to  49  ;  3  Burge,  Comm. 
on  Col.  and  For.  Law,  Pi.  2,  ch.  20,  p.  775,  776. 


CH.  VIII.]  FOREIGN    CONTRACTS.  431 

zen  and  a  foreigner,  it  seeras  admitted,  that  the  law  of 
the  place  where  the  contract  is  made,  ought  to  prevail, 
unless  the  contract  is  to  be  performed  elsewhere.'  In 
the  common  law  of  England  and  America,  all  these 
niceties  are  discarded.  Every  contract,  whether  made 
between  foreigners,  or  between  foreigners  and  citizens, 
is  deemed  to  be  governed  by  the  law  of  the  place 
where  it  is  made,  and  is  to  be  executed.^ 

§  279  a.  Hertius  has  put  a  case,  where  a  contract 
made  in  a  country  is  subject  to  a  condition,  and  the 
performance  of  that  condition  takes  place  in  another 
country,  the  laws  of  which  are  different ;  and  the 
question  is,  whether  the  laws  of  the  one,  or  those  of  the 
other  ought  to  govern  the  contract.  He  answers,  that 
the  laws  of  the  country  where  the  contract  was  made  ; 
because  the  condition,  when  fulfilled,  refers  back  to  the 
time  of  the  contract.  Quia  conditio  7'etrotraJiitur  ad  tem- 
piis  conventionis?  J.  a  Sande  adopts  the  same  doctrine 
almost  in  the  same  words.'* 

§  280.  The  rules  already  considered,  suppose  that 
the  performance  of  the  contract  is  to  be  in  the  place 
where  it  is  made,  either  expressly  or  by  tacit  implica- 
tion.^ But  where  the  contract  is,  either  expressly  or 
tacitly,  to  be  performed  in  any  other  place,  there  the 


*  See  Livermore's  Dissert.  ^  42,  p.  46  ;  1  Hertii  Opera,  De  Collis. 
Leg.  ^  10,  p.  1-26,  1-28  ;  Id.  p.  179  to  p.  181,  edit.  1716  ;  Voet,  de  Siatut. 
^  9,  ch.  2,  Excep.  4  ;  Id.  ^  10,  p.  268,  edit.  1715 ;  Id.  p.  325,  edit.  iei61. 
But  see  contra,  2  Boullenois,  Observ.  46,  p.  459  ;  ante,  ^  263,  ^  273,  274. 

2  Smith  V.  Meade,  3  Connect.  R.  253;  De  Sobry  u.  De  Laistre,  2  Harr. 
and  Johns.  R.  193,  228 ;  Jacks  v.  Nichols,  5  Barbour,  38. 

3  Hertii  Opera,  De  Collis.  Leg.  ^  4,  n.  54,  p.  147,  edit.  1737  ;  Id. 
p.  207,  edit.  1716. 

4  J.  a  SandO;,  Coram,  ad  Reg.  Jur.  1.  9,  p.  18  ;  post,  ^  287. 

5  Ante,  §  242. 


432  CONFLICT    OP   LAWS.  [CH.  VIII. 

general  rule  is,  in  conformity  to  the  presumed  intention 
of  the  parties,  that  the  contract,  as  to  its  validity,  na- 
ture, obligation,  and  interpretation,  is  to  be  governed 
by  the  law  of  the  place  of  performance.^  This  would 
seem  to  be  a  result  of  natural  justice  ;  and  the  Roman 
law  has  (as  we  have  seen)  adopted  it  as  a  maxim  ;  Con- 
traxisse  wmsquisqiie  in  eo  loco  mteUigitur,  in  quo  td  solveret, 
se  ohligavit.^  And  again,  in  the  law,  Aut  uhi  qiiisque 
contraxerit.  Contractum  aiitem  non  idiqiie  eo  hco  intelUgi- 
tur,  quo  negotiiim  gestiim  sit ;  sed  quo  solvenda  est  peciinia? 
The  rule  was  fully  recognized,  and  acted  on  in  a  recent 
case  by  the  Supreme  Court  of  the  United  States,  where 
the  Court  said,  that  the  general  principle,  in  relation  to 
contracts  made  in  one  place  to  be  executed  in  another, 
was  well  settled  ;  that  they  are  to  be  governed  by  the 
laws  of  the  place  of  performance.^ 

§  281.  Paul  Voet  has  laid  down  the  same  rule.  Hlnc, 
ratione  effedus  et  complementi  ipsiiis  contractus,  speciatiir 
ille  locus,  in  quern  destinata  est  solutio  :  id,  quod  ad  modmn, 
mensurani,  iisuras,  ^c.  negligentiam,  et  moram  post  contrac- 
tum inituni  accedentem,  referendum  est!'  He  puts  the 
question ;  Qidd  si  in  specie,  de  nummoriim  aid  redituum 
solidionc  dlfficultas  incidat,  si  forte  valor  sit  immidatus,  an 


1  2  Kent,  Comm.  Lect.  37,  p.  393,  394,  and  Lect.  39,  p.  459,  3d  edit.  ; 
Casaregis,  Disc.  179;  1  Eintrigon,  c.  4,  ^  8,  Voet,  de  Stat.  ^  9,  ch.  2, 
^  15,  p.  270,  edit.  1715  ;  Id.  p.  328,  edit.  1661  ;  UouUenois,  Quest.  Contr. 
des  Lois,  p.  339,  &c.  ;  3  Burge,  Comment,  on  Col.  and  For.  Law,  Pt.  2, 
ch.  20,  p.  771,  772  ;  Don  v.  Lippman,  5  Clark  &  Finell.  R.  1,  13,  19  ; 
Fergusson  v.  Fyfle,  8  Clark  &  Finell.  1-21. 

2  Dig.  Lib.  44,  tit.  7,  1.  21  ;  ante,  ^  233. 
y  Dig.  Lib.  42,  tit.  5,  1.  3. 

4  Andrews  u.  Pond,  13  Peters,  R.  65.  See  Frazier  v.  Warfield,  9 
Smedes  &  Marshall,  220. 

5  P.  Voet  De  Stat.  §  9,  ch.  2,  p.  270,  ^  12,  14,  15,  16,  p.  269  to  p.  273, 
edit.  1715  ;  Id.  p.  326  to  p.  329,  edit.  1661  ;  post,  ^  301  f. 


CH.  VIII.]  FOREIGN    CONTRACTS.  433 

spedaUtiir  loci  valor,  ubi  contractus  erat  celehraiiiSy  an  loci, 
in  quern  desiinata  erat  solutio.  Jxespondeo  ;  Ex  generali 
Reguld,  spcdandum  esse  loci  statutum,  in  quern  desiinata 
erat  solutio}  So  that,  according  to  him,  if  a  contract  is 
for  money  or  goods,  the  value  is  to  be  ascertained  at  the 
place  of  performance,  and  not  at  the  place  where  the 
contract  is  made.2  And  the  same  rule  applies  to  the 
weight  or  measure  of  things,  if  there  be  a  diversity  in 
different  places.^  Everhardus  adopts  the  same  doctrine. 
Quod,  ccstimatio  rei  debitcc  consideratur  secundum  locum, 
iihi  destinata  est  solutio,  seu  deliheratio,  non  obstante  quod 
contractus  alibi  sit  celebratus^  TJt  videlicit  inspiciatiir  valor 
monetce,  qui  est  in  loco  destinatce  solutionis.^  Huberus 
adopts  the  same  exposition.  Veriim  tamen  non  ita  prcB- 
cise  resjnciendus  est  locus,  in  quo  contractus  est  initus,  ut  si 
paries  alium  in  contrahendo  locum  rcspexerint,  ille  non  potius 
sit  consider andus.^  Indeed,  it  has  the  general  consent  of 
foreign  jurists  ;  ^  although  to  this,  as  to  most  other  doc- 
trines, there  are  to  be  found  exceptions  in  the  opinions 
of  some  distinguished  names.  Thus,  John  a  Sande 
maintains,  that  the  law  of  the  place,  where  the  contract 
is  made,  is  to  govern,  although  the  payment  is  to  be 
made  in  another  place.  Denique  inspicitur  locus  contrac- 
tus, estiamsi  solutio  in  alium  locum  sit  destinata.  Et  pro- 
inde  mensura  iisurpanda  est  non  loci,  ubi  frumentum  vel 


1  P.  Voet,  De  Stat.  ^  15,  16,  p.  271,  edit.  1715  ;  Id.  p.  328,  edit.  1661; 
post,  ^  301,  f. 

2  Ibid. 

3  P.  Voet,  De  Slat.  ^  15,  16,  p.  271,  edit.  1715  ;  Id.  p.  328,  edit.  1661, 

4  Everhard.  Consil,  78,  n.  9,  p.  205;  post,  ^  300,  b. 

5  Ibid. 

6  Huberus,  Lib.  1,  tit.  3,  ij,  10  ;  ante,  §  239  ;  post,  299. 

7  21joullenois,  Observ.  46,  p.  475,  476  ;  Id.  p.  488  ;  1  HertiiOper.  De 
Collis.  Leg.  ^  4,  n.  53,  p.  147,  edit.  1737  ;  Id.  p.  207,  edit.  1716 ;  Voet, 
ad  Pand.  Lib.  4,  tit.  1,  ^  29 ;  Post,  ^  300  z  io  ^  300  f. 

CONFL.  37 


434  CONFLICT    OF   LAWS.  [CH.  VIIL 

vmmn  exigitur,  sed  uU  de  eo  conventiim  est}  The  gene- 
ral rule  has,  however,  been  adopted  both  in  England 
and  America.  In  one  of  the  earliest  cases,  Lord  Mans- 
field stated  the  doctrine  with  his  usual  clearness.  "  The 
law  of  the  place  can  never  be  the  rule,  where  the  trans- 
action is  entered  into  with  an  express  view  to  the  law 
of  another  country,  as  the  rule,  by  which  it  is  to  be  go- 
verned." ^  And  this  has  uniformly  been  recognized  as 
the  correct  exposition  in  the  common  law.^ 

§  282.  But  although  the  general  rule  is  so  well  esta- 
blished, the  application  of  it  in  many  cases  is  not  unat- 
tended with  difficulties  ;  for  it  is  often  a  matter  of  seri- 
ous question,  in  cases  of  a  mixed  nature,  which  rule 
ought  to  prevail,  the  law  of  the  place  where  the  contract 
is  made,  or  that  of  the  place  where  it  is  to  be  perform- 
ed.*    In  general,  it  may  be   said,  that,  if  no  place  of 


1  J.  a  Sande,  Opera,  Comm.  De  Reg.  Jur.  1.  9,  p.  18.  See  also  Cole- 
rus,  de  Process.  Exec.  Pt.  2,  n.  79,  cited  2  Boullenois,  Observ.  46,  p.  475, 
476. 

2  Robinson  v.  Bland,  2  Burr.  R.  1077,  1078  ;  Post,  ^  .S08  to  ^  314. 

3  Ludlow  V.  Van  Rensselaer,  1  Johns.  R.  94  ;  Thomson  v.  Ketcham, 
8  Johns.  R.  189;  Fanning  v.  Consequa,  17  Johns.  R.  511  ;  Powers  v. 
Lynch, 3  Mass.  R.  77;  4Co\ven,  Rep.  510,  note  ;  Van  Reimsdyke  tj.  Kane, 
1  Gall.  R.  371 ;  Cox  and  Dix  v.  U.  S.,  6  Peters,  172,  203  ;  2  Fonbl.  Eq. 
B.  5,  ch.  1,  ^  6,  and  note  ;  Prentiss  v.  Savage,  13  Mass.  R.  20,  23,  24  ; 
Ante,  §  270,  280  ;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20, 
p.  752  to  p.  754  ;  Id.  771,  772,  773  ;  Don  v.  Lippman,  5  Clark  &  Fin.  R. 
1,  13,  19,  20  ;  Tyler  v.  Trabue,  8  B.  Monroe,  306, 

4See2Kamcs,  Eq.  B.  3,  ch.  8,  ^S  4  ;  Voet,  de  Statute,  ^  9,  ch.  2,  (^^  10, 
Hertius  puts  some  questions  under  this  head.  A  condition  is  added  to  a 
contract  in  Belgium,  which  is  performed  by  the  debtor  in  Germany  ;  if  the 
laws  of  the  countries  are  different,  which  are  to  prevail  ?  Hertius  says 
those  of  Belgium,  because  the  condition  performed  relates  back  to  the  time 
of  making  the  contract.  Again,  a  contract  made  in  one  place  is  confirmed 
in  another  ;  what  laws  are  to  govern?  He  answers,  if  the  confirmation  is 
to  give  greater  credit  to  the  contract,  as  putting  it  in  writing  for  the  sake 
of  proof,  the  law  of  the  place  of  the  contract  is  to  prevail.     If  to  give  vali- 


CH.  VIII.]  FOREIGN   CONTRACTS.  435 

performance  is  stated,  or  the  contract  may  indifferently 
be  performed  anywhere,  it  ought  to  be  referred  to  the 
Lex  loci  contradus}  But  there  are  many  cases,  where 
this  rule  will  not  be  a  sufficient  guide ;  and  as  the  sub- 
ject is  important  in  its  practical  bearing,  it  may  be  well 
to  illustrate  it  by  some  cases.^ 

§  283.  One  of  the  most  simple  cases  is,  where  two 
merchants,  doing  business  with  each  other,  reside  in  dif- 
ferent countries,  and  have  mutual  accounts  of  debt  and 
credit  with  each  other  for  advances  and  sales.  What 
rule  is  to  be  folloAved  as  to  the  balance  of  accounts  ex- 
isting from  time  to  time  between  them  ?  Is  it  the  law 
of  the  one  country,  or  of  the  other,  if  there  is  a  conflict 
between  their  laws  on  the  subject  ?  If  the  business 
transactions  are  all  on  one  side,  as  in  case  of  sales  and 
advances,  made  by  a  commission  merchant  in  his  own 
country  for  his  principal  abroad ;  there  the  contracts 
may  well  be  referred  to  the  country  of  the  commission 
merchant,  and  the  balance  be  deemed  due  to  him  ac- 
cording to  its  laws.^  For,  although  it  may  be  truly 
said,  that  the  debt  is  due  from  the  principal,  and  he  is 
generally  expected  to  pay  it,  where  he  dwells ;  yet 


dity  to  the  contract,  the  law  of  the  place  of  the  confirmation.  1  Hertii 
Opera,  De  Collis.  Leg.  p.  147,  ^  54,  55  ;  Id.  p.  207,  208,  edit.  1716. 

'  Don  V.  Lippman,  5  Clark  &  Fin.  R.  1,  13,  19,  20  ;  Post,  ^  317. 

~  Mr.  Burge  has  expressed  the  true  sense  of  the  general  rule,  and  lis 
qualifications,  in  the  following  terms.  "  It  may  be  stated  generally,  that 
with  respect  to  contracts,  of  which  movable  property  is  the  subject,  the 
law  of  the  place  in  which  the  contract  is  made  will  in  some  respects  ex- 
clusively prevail,  although  the  contract  is  to  be  performed  in  another  ;  and 
that  in  those  respects  ii\  which  it  does  not  prevail,  the  law  of  the  place 
where  the  contract  is  to  be  performed,  must  be  adopted.  But  this  conclu- 
sion is  subject  to  some  qualifications  and  exceptions." 

3  Coolidge  V.  Poor,  15  Mass.  R.  427  ;  Consequa  v.  Fanning,  3  Johns. 
Ch.  R.  587,  GIO.  See  also  Bradford  v.  Harvard,  13  Mass.  R.  18  ;  Milne 
V.  Moreton,  6  Binn.  R.  353,  359,  365. 


436  CONFLICT    OF   LAWS.  [CH.  \'IIL 

it  is  equally  true,  that  the  debt  is  due  where  the  ad- 
vances are  made,  and  that  payment  may  be  insisted 
upon  there. 

§  284.  But.  suppose  the  advances  have  been  made  in 
the  country  of  the  principal,  and  the  goods  sold  in  the 
other  country ;  is  the  same  rule  to  prevail  ?  Or,  are 
the  advances  to  be  governed  by  the  law  of  the  place 
where  they  are  advanced,  and  the  sales  of  the  goods 
by  that  of  the  place  where  they  are  received  by  the 
commission  merchant?  Suppose  both  the  merchants, 
in  different  countries,  sell  goods  and  make  advances 
mutually  for  each  other  ;  and  upon  the  accounts  a  ba- 
lance is  due  from  one  to  the  other ;  by  the  law  of  what 
place  is  such  balance  to  be  ascertained  and  paid  ?  In 
these  and  many  other  like  mixed  cases,  the  amount  of 
the  balance,  the  time,  and  the  manner,  and  the  place  of 
payment,  and  the  true  principle  of  the  adjustment  of 
the  mutual  accounts,  may  materially  depend  upon  the 
operation  of  the  Lex  loci,  when  the  law  of  the  one  coun- 
try conflicts  with  that  of  the  other.  The  habits  of  busi- 
ness and  trade  between  the  parties  may  sometimes 
decide  these  points  ;  but  if  no  such  governing  circum' 
stances  are  established,  the  cases  must  be  reasoned  out 
upon  principle.  Upon  principle,  it  may,  perhaps,  be 
found  most  easy  to  decide,  that  each  transaction  is  to 
be  governed  by  the  law  of  the  place  where  it  origin- 
ated ;  advances  by  the  law  of  the  place  where  they  are 
advanced ;  and  sales  of  goods  by  the  law  of  the  place 
where  they  are  received.^  The  importance  of  the  true 
rule  is  peculiarly  felt  in  all  cases  of  interest  to  be  paid 
on  balances. 


1  See  Consequa  V.  Fanning,  3   Johns.  Ch.  R.  588,  GIO  ;   17  Johns.  R. 
511  ;  Casaregis,  Disc.  179. 


CH.  viil]  foreign  contracts.  437 

§  284  «.  This  subject  was  a  good  deal  discussed  in  a 
recent  case,  where  goods  had  been  consigned  for  sale  in 
Trieste  by  a  merchant  of  Boston,  and  advances  were 
made  by  the  agent  of  the  consignees  in  Boston  to  an 
amount  exceeding  the  amount  of  the  proceeds  of  the 
goods  when  sold.  A  suit  was  brought  by  the  consign- 
ees to  recover  the  balance,  and  the  question  was,  at 
what  rate  of  exchange  the  balance  was  to  be  allowed  ; 
and  that  depended  upon  another  question,  where  the 
balance  was  reimbursable,  in  Boston,  or  in  Trieste.  The 
Court  held  that  the  balance  was  reimbursable  at  Boston, 
where  the  advances  were  made ;  but  that,  if  the  ad- 
vances had  been  made  at  Trieste,  the  balance  would 
have  been  reimbursable  there.  The  Court  consequently 
allowed  the  par  of  exchange  at  Boston  upon  the  balance, 
it  being  payable  there.^ 

[§  284  h.  On  the  other  hand,  it  has  been  very  recently 
determined  in  Louisiana,  and  apparently  in  conflict  with 
the  case  last  cited,  that  where  an  advance  was  obtained 
in  that  State  from  an  agent  residing  there,  of  a  foreign 
principal,  on  merchandise  to  be  shipped  to,  and  sold  by,  the 
latter  abroad,  the  rate  of  interest  on  a  balance  due  the 
foreign  principal  by  reason  of  the  proceeds  of  the  sale 
falling  short  of  the  advances,  must  be  determined  by 
the  law  of  the  domicil  of  the  principal,  where  the  mer- 
chandise was  sold.^] 


1  Grant  y.  Healey,  2  Chand.  Law  Reporter,  113  ;  S.  C.  3  Sumner,  R. 
523.     See  Post,  311  a,  and  note. 

2  Ballister  v.  Hamilton,  3  Louis.  Ann.  R.  401.  Slidcll,  J.,  who  deli- 
vered the  judgment  in  this  case,  observed  :  "  We  are  aware  that  this  view 
conflicts  with  the  opinion  of  Judge  Story,  in  Grant  v.  Healy,  2  Law  Rep. 
113;  3  Sumner,  R.  523  ;  but  we  feel  a  strong  conviction  that  the  rule  we 
have  followed,  accords  with  the  general  mercantile  opinion,  which  in  a 
matter  of  this  sort  is  entitled  to  great  weight." 

37* 


438  CONFLICT    OF  LAWS.  [CH.  VIIL 

§  285.  Another  case  may  serve  to  illustrate  the  same 
doctrine.  A  merchant  in  America  orders  goods  to  be 
purchased  for  him  in  England.  In  which  country  is  the 
contract  to  be  deemed  complete,  and  by  the  laws  of 
which  is  it  to  be  governed  ?  Casaregis  has  affirmed, 
that  in  such  a  case  the  law  of  England  ought  to  go- 
vern ;  for  there  the  final  assent  is  given  by  the  person, 
who  receives  and  executes  the  order  of  his  correspond- 
ent. Pro  Jivjus  materice  declarcdione  j^rcemittenda  est  reg- 
ula  ah  omnihiis  recepta,  quod  contractus  vel  negotium  inter 
absentes  gestiim  dicatiir  eo  loci,  quo  idtimus  in  contrahendo 
assentitur,  sive  acceptat ;  quia  tunc  tantum  iiniuntur  amho 
co7isensus}  Sic  mandati  contractus  dicitur  initus  in  loco, 
quo  diriguntur  literce  missivce,  alicujus  mercatoris,  si  alter  ad 
quern  diriguntur,  eas  recipit,  et  acceptat  r)iandatum?  He 
goes  on  to  illustrate  the  doctrine  by  putting  the  case 
of  a  merchant,  directing  his  correspondent,  in  a  foreign 
country,  to  buy  goods  for  him  ;  in  which  case  he  says, 
if  the  correspondent  accept  the  order,  and  in  the  exe- 
cution of  it  he  buys  the  goods  of  a  third  person,  two 
contracts  spring  up ;  the  first  of  mandate  between  the 
principal  and  his  agent,  and  the  second  of  purchase  and 
sale  between  the  vendor  and  the  agent,  as  purchaser  in 
the  name  of  the  principal ;  and  both  are  to  be  deemed 
contracts  made  in  the  place,  where  the  agent  resides. 
His  language  is ;  Quando  Mercator  alteri  suo  Correspon- 
sori  mandat,  ut  aliquas  tnerces  pro  se  emat,  casque  sibi  trans- 
mittat,  quo  casu  si  Corresponsor  acceptet  mandatum,  et  in 
illius  execidionem  ah  aliqua  tertia  persona  merces '  commis- 


1  Casaregis,  Disc.  179,  ^  1,  2.  See  1  Ilertii  Opera,  De  Collis,  Leg. 
^  56,  p.  147  ;  Id.  p.  208,  edit.  171G ;  1  Burge,  Com.  on  Col.  and  For. 
Law,  Pt.  2,  ch.  20,  p.  753. 

2  Ibid. 


CH.  viil]  foreign  contracts.  439 

sas  emat,  duo  perficiimtur  contractus  :  Primus,  mandati 
inter  mandantem,  et  mandatariiim,  et  alter,  empiionis,  et  re- 
spective venditionis  inter  eundcm  mandatarium,  vti  emptorem 
nomine  mandantis,  et  venditorem,  et  ambo  pierficiuntur  in  hco 
mandatarii :  Nam,  quoad  mandati  contractmn,  ratio  est,  quia 
consensus  mandantis  per  literas  iinitur  cum  idtimo  consensu 
mandatarii  in  loco,  quo  mandatarius  reperitur,  ei  acceptat 
mandatum,  eoque  magis  quoad  altcrum  venditionis,  et  respec- 
tive emptionis,  quia  mandatarius  vere  emit  in  loco,  in  quo  et 
ipse,  et  venditor  existunt}  This  doctrine,  so  reasonable 
in  itself,  has  been  expressly  affirmed  by  the  Supreme 
Court  of  Louisiana.^  It  has  also  received  a  sanction  in 
a  recent  case  in  the  House  of  Lords,  where  the  Lord 
Chancellor  said  ;  "If  I,  residing-  in  England,  send  down 
my  agent  to  Scotland,  and  he  makes  contracts  for  me 
there,  it  is  the  same  as  if  I  myself  went  there  and  made 
them."  3  The  same  rule  has  been  held  to  apply  even  to 
an  English  corporation,  contracting  by  its  agent  in  Scot- 
land ;  for  the  contract  takes  effect  as  a  contract  in  Scot- 
land.^ 


1  Casaregis,  Disc.  179,  n.  10,  p.  192. 

2  Mr.  Justice  Martin,  in  Whiston  v.  Stodder,  8  Martin,  R.  93.  See 
also  Malpica  v.  McKown,  1  Louis.  R.  248,  355, 

3  Pattison  v.  Mills,  1  Dow  &  Clark,  R.  342;  Albion  F.  and  L.  Insur. 
Co.  V.  Mills,  3  Wils.  &  Shaw,  218,  233.  It  is  difficult  to  reconcile  this 
doctrine  with  the  views  of  the  Court  and  bar  in  Acebal  v.  Levy,  10  Ring. 
R.  376,  379,  380,  381,  (Ante,  <^  262  a,)  where  upon  a  sale  of  goods  in 
Spain,  to  be  delivered  in  England,  the  purchase  having  been  made  by  an  ' 
agent  of  the  purchasers  by  orders  sent  to  Spain,  the  Court  and  bar 
seem  to  have  thought  that  the  contract  was  governed  by  the  English  Sta- 
tute of  Frauds.  See  Ante,  ^262  a;  Post,  ^318,  and  note.  Did  the  place 
of  the  delivery  and  payment  make  any  difference  1  See  Post,  (^S  318,  and 
note. 

4  Albion  F.  &  L.  Insur.  Co.  v.  Mills,  3  Wils.  &  Shaw,  R.  218,  233, 
234.  See  also  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20, 
p.  753. 


440  CONFLICT    OF   LAWS.  [CH.  VIII. 

§  286.  And  if  a  like  contract  of  purchase  is  made  by 
an  agent  without  orders,  and  the  correspondent  ratifies 
it,  Casaregis  says,  that  the  contract  is  not  to  be  deemed 
a  contract  in  the  country  of  the  ratification,  but  of  the 
purchase ;  because  the  ratification  has  reference  back 
to  the  time  and  place  of  the  purchase.  Ratio  est,  quia 
ille  ratijicationis  consensus,  licet  emitatur  in  loco  ratificaniis, 
etihi  videatur  se  unirc  cum  altero  precedenti  gcrentis  consen- 
su, qui  venit  a  loco  gerentis  ad  locum  ratificaniis,  retrotraJii- 
tiir  ad  tempus  et  ad  locum,  in  quo  fuit  per  gestorem  initus 
contractus  emptionis  ;  vel  aliud  negotium  pro  absente  ;  et  ra- 
tio rationis  est,  quia  consensus  ratificaniis  non  unitur  in  loco 
suo  ad  aliquem  actum  seu  contractum  perficicndum,  sed  ac- 
ceptandum  contractum  vel  negotium  pro  se  in  loco  gestoris 
jam  factum ;  ac  si  eodem  tempore  et  loco,  in  quo  fait  per 
gestorem  negotium  gestimi,  ipsemct  ratificans  essct  prwsens, 
ihique  contraxisset}  So,  a  like  rule  applies,  if  a  merchant 
in  one  country  agrees  to  accept  a  bill  drawn  on  him  by 
a  person  in  another  country.  It  is  deemed  a  contract 
in  the  place  where  the  acceptance  is  to  be  made.^  Paul 
Voet  adopts  the  same  conclusion.  Quid  si  de  Uteris 
camhii  incidat  qucBstio,  Quis  locus  erit  sp)ectandus  ?  Is  spec- 
tandiis  est  locus,  ad  quern  sunt  destinatcB,  et  ibidem  accep- 
tatcc? 

286  a.  Hertius  takes  a  curious  distinction  on  this 
subject.  If,  says  he,  a  contract  is  made  in  one  country, 
and  is  ratified  in  another,  it  may  be  asked,  if  the  laws 
of  the  different  places  vary,  which  is  to  govern  ?  To 
which  he  answers :  If  the  confirmation  is  made  to  add 
additional  faith  to  the  contract,  as  for  example,  if  the 


1  Casaregis,  Disc.  179,  §  20,  64,  76  to  80,  83. 

2  Boyce  v.  Edwards,  4  Peters,  R.  Hi. 

3  P.  Voet,  De  Statut.   ^  9,  ch.  2,  <§  14,  p.  271,  edit.  1715  ;  Id.  p.  327, 
edit.   1061. 


CH.  VIIT.]  FOREIGN    CONTRACTS.  441 

contract  is  reduced  to  writing  for  the  sake  of  proof, 
then  the  law  of  the  pUice  where  the  contract  is  made, 
is  to  be  looked  to.  But,  if  to  give  validity  to  the  con- 
tract itself,  the  law  of  the  place  of  confirmation  —  Con- 
tractus in  alio  loco  fit,  in  alio  confirmatiir  ;  qucEritur,  ciijus 
loci  leges,  si  discrepare  eas  tisiiveniat,  intiier  ideheamiis  ? 
Si  confirmatio  accedat  ad  concillandam  contractid  majorem 
fidem,  V.  g.  contractus  prohationis  gratia  in  scriptiiram 
redigatur,  arhitramtir,  spectandam  loci,  uhi  contraliitur  le- 
gem. Bin,  id  contractus  sit  validus,  loci,  uU  confirmatur, 
jura  prcevalelunt}  So  that  Hertius  seems  to  put  the 
solution  of  the  case  upon  the  point,  of  the  supposed  in- 
tention of  the  parties,  to  give  validity  to  a  defective 
contract,  or  only  to  impart  a  better  proof  of  its  original 
validity. 

§  286  ^.  A  question  of  a  somewhat  analogous  na- 
ture, growing  out  of  agency,  and  of  very  familiar  oc- 
currence, deserves  notice  in  this  place.  It  is  well 
known,  that  by  the  common  law  the  master  of  a  ship 
has  a  limited  authority  to  take  up  money  in  a  foreign 
port,  and  give  a  bottomry  bond  in  cases  of  necessary 
repairs,  and  other  pressing  emergencies.  But  he  is  not 
at  liberty  to  give  such  a  bond  for  mere  useful  supplies 
or  advances,  which  are  not  strictly  necessary.  It  is 
highly  probable,  that  in  some  maritime  countries,  the 
basis  of  whose  jurisprudence  is  the  civil  law,  a  broader 
authority  is  allowed  to  the  master  or  at  least  a  broader 
liability  may  attach  upon  the  vessel  and  the  owner.^ 
In  such  a  case,  the  question  might  arise,  whether  the 


1  1  Hertii  Opera,   De  Collis.  Leg.  ^  4,  n.  55,  p.  147,  edit.  1737  ;  Id. 
p.  208,  edit.  1716  ;  Ante,  ^  297. 

2  See  2  Emerigon,  Contrals  a  la  Grosse,  ch.  4,  i^*  2  to  ^  G,  ^  8,  p.  422 
to  p.  445. 


442  CONFLICT    OF   LAWS.  [CH.  VIIL 

liability  of  tlie  ship,  or  of  the  owner,  was  to  be  decided 
by  the  authority  of  the  master  according  to  the  law  of 
the  foreign  place,  where  the  money  was  advanced,  or 
by  the  law  of  the  place  of  the  domicil  of  the  ship  and 
owner.  In  England  it  would  be  held,  (at  least  such 
seems  the  course  of  the  adjudications,)  that  the  master's 
authority  to  bind  the  ship,  or  the  owner,  in  a  foreign 
port,  would  be  governed  by  the  law  of  the  domicil  of 
the  owner ;  and  that  consequently  the  master  of  an 
English  ship  could  not  bind  the  owner  for  advances,  or 
supplies  in  a  foreign  port,  which  were  not  justifiable  by 
the  English  law.^     But  it  is  far  from  being  certain,  that 


1  The  Nelson,  1  Hagg.  Adm.  R.  169,  175,  176.  — In  the  case  of  The 
Nelson,  Lord  Stowell  said;  "It  is  certainly  the  vital  principle  of  this 
species  of  bonds,  that  they  shall  have  been  taken,  where  the  owner  was 
known  to  have  no  credit ;  no  resources  for  obtaining  necessary  supplies. 
It  is  that  state  of  unprovided  necessity  that  alone  supports  these  bonds. 
The  absence  of  that  necessity  is  their  undoing.  If  the  master  takes  up 
money  from  a  person,  who  knows  that  he  has  a  general  credit  in  the  place, 
or  at  least  an  empowered  consignee,  or  agent,  willing  to  supply  his  wants, 
the  giving  a  bottomry  bond  is  a  void  transaction,  —  not  affecting  the  pro- 
perty of  the  owner,  —  only  fixing  loss  and  shame  on  the  fraudulent  lender  ; 
but  where  honorably  transacted,  under  an  honest  ignorance  of  this  fact, 
an  ignorance  that  could  not  be  removed  by  any  reasonable  inquiry,  it  is 
the  disposition  of  this  Court  to  uphold  such  bonds,  as  necessary  for  the 
support  of  commerce  in  its  extremities  of  distress,  and  as  such  recognized 
in  the  maritime  codes  of  all  commercial  ages  and  nations.  To  the  bond 
exhibited  here,  some  objections  are  taken  respecting  its  form,  but  not  affect- 
ing its  validity.  One  objection  is,  that  it  binds  the  owners  personally, 
as  well  as  the  ship  and  freight,  which  it  cannot  do.  That  is  held  in  this 
Court  to  be  no  objection  to  the  efficacy  of  what  it  is  admitted  it  can  do. 
Here  we  do  not  take  this  bond  in  toto,  as  is  done  in  other  systems  of  law, 
and  reject  it  as  unsound  in  the  whole,  if  vicious  in  any  part.  But  we 
separate  the  parts,  reject  the  vicious,  and  respect  the  efficiency  of  those 
which  are  entitled  to  operate.  The  form  of  these  bonds  is  different  in 
different  countries  ;  so  is  their  authority.  In  some  countries  they  bind 
the  owner  or  owners,  in  others  not  ;  and  where  they  do  not,  though  the 
form  of  the  bond  affects  to  bind  the  owners,  that  part  is  insignificant,  but 
does  not  at  all  touch  upon  the  efficiency  of  those  parts,  which  have  an 


CH.  yill.]  FOREIGN    CONTRACTS.  443 

foreign  courts,  and  especially  the  courts  of  the  coun- 
try where  the  advances  or  supplies  were    furnished, 


acknowledged  operation.  It  is  objected  likewise,  that  this  bond  does  not 
express  the  obligation  to  be  on  the  sea  risk,  and  it  does  not  expressly,  or 
in  exact  ternns  ;  but  it-does  in  terms  amounting  to  the  same  effect.  The 
money  is  to  be  paid  at  such  a  time  "  after  the  ship  arrives  at  her  port." 
If  the  ship  never  arrives  at  her  port,  or  is  lost  upon  the  voyage,  that  is  a 
sufficient  description  of  sea  risk.  I  take  no  notice  of  the  other  objections  made 
to  this  bond.  They  are  objections  invariably  paraded  on  these  occasions,  and 
as  invariably  overruled  by  the  Court."  Mr.  Brodie  in  his  notes  on  Lord 
Stair's  Institutes,  (Vol.  2,  p.  955,  956,)  has  gone  into  a  full  examination 
of  this  subject,  and  said  :  "  It  may  be  laid  down  as  a  general,  though  not 
absolute  principle,  that  people  may  be  held  to  contract  in  reference  to  the 
law  of  the  country  under  whose  protection  they  happen  to  be  at  the  time. 
Grant  this,  however,  and  the  conclusion  follows,  that  the  lex  loci  contrac- 
tus becomes  in  reality  a  constituent  quality  of  their  agreements.  Hence 
it  may  be  argued,  that  if,  on  account  of  a  vessel,  a  debt  be  contracted  in 
a  foreign  country,  which  admits  the  principle  of  a  tacit  hypothecation  for 
repairs,  &c.,  such  a  jus  in  re  ought  to  be  implied,  as  the  actual  import 
and  understanding  of  the  transaction,  and  as  therefore  no  less  acquired  ex 
lege  loci,  than  if  it  had  been  constituted  by  a  formal  writing.  But  if  in 
this  way  such  a  right  do  arise  ex  lege  loci,  then  ex  justitia,  and  on  prin- 
ciples of  international  law,  ought  to  be  rendered  effectual  with  us  ;  a  point, 
which  will  be  manifest,  if  we  consider,  that  the  validity  of  a  written  in- 
strument must  be  tried  by  the  lav/  of  the  place  in  which  it  was  executed. 
Still,  however,  must  it  be  remembered,  that  it  is  merely  as  the  presumed 
understanding  and  intention  of  parties,  that  the  jus  in  re  can  so  arise  ;  as 
a  right  conceived  in  favor  of  the  creditor  it  can  unquestionably  be  renounced 
by  him  ;  and  then  comes  the  question,  whether  circumstances  do  not  ex- 
clude the  presumption  quoad  a  mutual  understanding  founded  on  the  law 
of  the  place.  When,  not  to  speak  of  necessary  advances,  a  foreign  ship 
is  repaired  here,  the  shipwright,  who  parts  with  the  possession  without 
stipulating  for,  and  obtaining  in  due  form,  a  security  over  the  thing,  may 
be  supposed  to  have,  according  to  the  principle  of  the  common  law,  relied 
exclusively  on  the  personal  credit  of  his  debtor  ;  did,  therefore,  the  other 
party  even  conceive,  that  he  had  likewise  bound  the  vessel,  there  would 
be  wanting  the  mutual  understanding  to  infer  an  agreement.  So  far,  then, 
does  the  lex  loci  operate  against  the  contraction  of  a  jus  in  re  for  the 
debt ;  but  it  does  not  thence  follow,  that  elsewhere  the  lex  loci  should 
operate  in  favor  of  a  tacit  hypothecation.  A  distinction  is  ever  to  be  at- 
tended to  between  the  case  of  a  party  casually  entering  a  foreign  country, 
and  that  of  one  who  resides  in  it ;  and  the  distinction  is  particularly  strong 
in  regard  to  an  individual,  who,  as  master,  has  the  charge  of  a  vessel  in 


444  CONFLICT    OF    LAWS.  [CH.    VIII. 

would  adopt  the  same  rules,  if  the  lender  or  supplier 
had  acted  with  good  faith,  and  in  ignorance  of  the 
want  of  authority  in  the  master.^ 


a  foreign  port.  Well  may  such  a  person,  when  he  orders  repairs  on  per- 
sonal credit,  be  presumed  to  be  ignorant  of  any  further  condition,  which 
the  law  of  his  own  country  denies;  and  while,  if  the  other  party  leave 
that  unexplained,  it  may  be  argued  with  great  plausibility,  that  he  has 
consented  to  waive  the  additional  security,  tacitly  admitted  in  ordinary 
cases,  ex  lege  loci,  it  must  be  considered,  that  there  would,  at  all  events, 
be  wanting  the  mutual  assent,  which  constitutes  the  basis  of  a  contract. 
But  this  is  not  all.  The  contract,  in  such  cases,  is  made  with  the  ship- 
master, who  acts  as  the  implied  mandatory  of  the  owners  ;  and  the  effect 
of  the  transaction  must  greatly  depend  on  the  extent  of  his  authority. 
Now,  it  is  true,  that,  as  a  person,  who  has  been  appointed  to  an  office, 
must  be  presumed  to  be  invested  with  the  usual  powers,  so  restrictions 
upon  the  ordinary  authority  will  not  be  effectual  against  another  party, 
who  has  not  been  apprised  of  them  ;  —  yet  it  will  be  observed,  that,  since 
it  is  the  duty  of  those  who  deal  with  an  agent,  to  make  themselves  ac- 
quainted with  the  extent  of  his  powers,  whether  expressed  or  fairly  im- 
plied from  his  office,  so  the  presumed  mandate  here  must  be  measured, 
either  by  some  general  principle  of  maritime  law,  or  by  the  law  of  the 
country  to  which  the  ship  belongs.  Such  a  general  principle  of  maritime 
law  would  of  itself,  though  in  a  different  way,  tend,  in  my  apprehension, 
to  exclude  the  lex  loci  ;  but  there  is  no  such  universally  received  principle, 
and  the  more  positive  exclusion  of  the  principle  of  the  lex  loci  is  the 
consequence.  Thus,  the  English  law  does  not  allow  the  master  to  hy- 
pothecate the  vessel,  at  least  expressly,  unless  in  a  foreign  port,  where 
personal  credit  is  unattainable  ;  but  entitles  him  to  pledge  the  absolute 
personal  responsibility  of  his  constituents  for  the  amount  of  necessary 
repairs,  furnishings,  &c. ;  while  on  the  other  hand,  the  French  law  author- 
izes him  to  hypothecate  the  vessel,  &c.,  not  bind  his  constituents  person- 
ally, at  least  not  beyond  the  eventual  value  of  the  ship-  and  freight,  &c., 
on  her  return.  And  it  is  quite  clear,  that  the  merchants  and  artisans  of 
the  respective  countries  must  contract  with  the  shipmasters  of  each  other, 
according  to  the  powers  respectively  inherent  in  those  offices.  It  would 
be  to  no  purpose  for  the  English  artisan  or  merchant  to  plead  in  France 
the  law  of  his  own  country  in  support  of  his  action  for  absolute  responsi- 
bility ;  and  to  allow  the  Frenchman  to  have  the  benefit  of  a  privilege  ex 
']^e  loci,  while  he  has  acquired  the  absolute  personal  liability  of  the  own- 
ers  wbil^j  while   an   opposite   measure  of  justice  was   awarded  to  the 

1  2  Em6ri«ion"*Qo"trat.  a  la  Grosse,  ch.  4,  ^  8,  p.  411,  442 ;  Malpica  v. 
McKown,  1  Lou'is.  R\  249,  254,  255. 


CH.  VIII.]  FOREIGN   CONTRACTS.  445 

§  286  c.  In  a  recent  case  in  Louisiana,  "where  the 
question  arose  as  to  the  liability  of  the  owner  for  the 
property  on  board,  belonging  to  a  passenger  who  died 
on  the  voyage,  the  property  being  afterwards  lost,  the 
point  was  made,  whether,  as  the  passenger  and  pro- 
perty were  taken  on  board  at  a  foreign  port,  the  law  of 
that  port,  or  the  law  of  the  place  where  the  vessel  and 
owner  belonged,  ought  to  govern  as  to  the  owner's  lia- 
bility. On  that  occasion  the  Court  said  :  "  We  are  of 
opinion  that  the  law  of  the  place  of  the  contract,  and 
not  that  of  the  owner's  residence,  must  be  the  rule  by 
which  his  obligations  are  to  be  ascertained.  The  Lex 
loci  contmctus  governs  all  agreements  unless  expressly 
excluded,  or  the  performance  is  to  be  in  another  coun- 
try, where  different  regulations  prevail.  What  we  do 
by  another  we  do  by  ourselves ;  and  we  are  unable 
to  distinguish  between  the  responsibility  created  by 
the  owner,  sending  his  agent  to  contract  in  another 
country,  and  that  produced  by  going  there  and  con- 
tracting himself'  Perhaps  the  case  itself  did  not 
require  so  broad  an  expression  of  opinion ;  since  the 


English,  be  to  afford  him  a  double  advantage  —  the  combined  effect  of  the 
laws  of  both  countries,  —  would  give  him  a  right  the  opposite  party  never 
contracted  for,  nor  himself  could  fairly  anticipate.  The  clear  result  then 
is,  that  the  transactions  must  be  held  to  have  reference  to  the  master's  im- 
plied mandate,  according  to  the  law  of  his  own  country  —  a  mandate, 
which  it  is  the  duty  of  those  who  deal  with  him  as  an  agent,  to  ascertain 
the  extent  of  ;  and,  that,  while  they  never  can  justly  complain  of  having 
their  right  limited  by  such  a  principle,  the  shipmaster  cannot  be  supposed 
to  intend  an  abuse  of  his  powers,  —  whence  the  very  gist  of  all  contracts, 
the  understanding  of  parties,  would  be  wanting  to  infer  a  right,  ex  lege 
loci  contractus,  which  the  scope  of  his  authority  did  not  import.  Thus 
much  for  the  principle  of  the  lex  loci  contractus.  We  shall  now  proceed 
to  inquire  into  the  principles  recognized  in  England." 

1  Mr.  Justice  Porter  ia  Malpica  v.  McKown,  1  Louis.  R.  249,  254  ; 
Ante,  ^  285. 

CONFL.  38 


446  CONFLICT    OF   LAWS.  [CH.  VIII. 

Court  seem  to  have  assumed,  that  the  law  of  the 
owner's  domicil  coincided  with  the  law  of  the  place  of 
the  contract,  as  to  the  owner's  responsibility,  and  the 
authority  of  the  master.  But  the  same  doctrine  has 
been  elaborately  maintained  by  the  same  Court  in 
another  case.^ 


1  Arago  V.  Currell,  1  Louis.  R.  528.  Mr.  Justice  Martin,  In  delivering 
the  opinion  of  the  court  in  this  case,  said  :  "The  first  question  it  presents, 
relates  to  the  law,  by  which  the  rights  of  the  parties  are  to  be  governed. 
The  defendant  sent  his  vessel  from  New  Orleans  to  Vera  Cruz,  to  be  em- 
ployed in  the  transportation  nf  passengers  ;  and  the  master  there  entered 
into  a  contract  for  their  passages,  -which  being  within  the  scope  of  his 
authority,  must  be  as  binding  on  the  defendant  as  if  it  had  been  entered 
into  by  him  personally.  This  proposition  is,  however,  strenuously  com- 
bated by  his  counsel,  who  contends,  that  the  master  had  no  authority  to 
bind  the  owner  absolutely,  but  only  to  the  amount  of  the  value  of  the  ves- 
sel and  freight ;  because  the  laws  of  the  country,  in  which  the  owner  has 
his  domicil,  fix  the  measure  of  his  responsibility,  on  all  contracts  made  by 
the  master  ;  that  the  question,  whether  an  agent  has  exceeded  his  powers, 
must  be  solved  by  the  laws  of  the  place  in  which  he  received  them.  The 
admission  of  this  position  would  still  present  the  question,  whether,  ac- 
cording to  the  laws  of  Louisiana,  the  agent,  who  contracted  in  Mexico,  in 
the  manner,  the  master  did  in  the  present  case,  exceeded  his  powers ; 
and  the  question  would  still  remain  open  as  to  the  laws,  which  ought  to 
govern.  So  it  would  be  under  the  provision  of  our  code,  relied  on,  that 
the  principal  is  bound  only  for  the  acts  of  his  agent,  which  he  could  have 
prevented.  So,  if  it  be  held,  that  the  law  of  Mexico  is  to  govern  a  con- 
tract directed  to  be  made  there,  the  question  would  not  be,  whether  the 
agent  exceeded  his  powers,  but  what  responsibility  the  principal  would 
have  incurred,  had  he  contracted  personally.  This  has  appeared  to  us  the 
sole  question  for  our  examination  and  solution.  The  master  was  sent  to 
Vera  Cruz  to  take  passengers  on  board  of  the  vessel  he  commanded.  He 
did  so.  It  is  not  pretended  that  he  made  any  other  than  the  agreement 
usual  on  such  an  occasion.  Whether  the  property  was  received  and  put 
on  board  by  the  owner,  or  master,  would  make  no  difference.  If  the  last 
was  committed  out  of  the  presence  of  the  owner,  his  liability  would  be  the 
same.  No  question  therefore  arises  as  to  the  authority  conferred  being 
exceeded.  The  owner  is  sought  to  be  made  liable,  not  on  the  contract, 
but  for  a  tort  committed  by  the  master,  acting  within  the  scope  of  his 
powers,  in  the  execution  of  the  contract.  The  law  relied  on,  which  fur- 
nishes the  owner  with  an  exemption  on  account  of  the  misfeasance  of  the 


CH.  VIII.]  FOREIGN    CONTRACTS.  447 

[§  286  cc.    On  the  other  hand,  in  a  still  more  recent 
case  ^  in  the  Circuit  Court  of  the  United  States,  a  dif- 


master  and  crew',  on  the  surrender  of  the  vessel  and  freight,  would  cause 
the  same  immunity  had  the  owner  contracted  personally.  If  we  under- 
stand the  matter  rightly,  the  immunity  is  independent  entirely  of  the 
agreement  having  been  entered  into  by  the  agent.  For  example,  in  Eng- 
land, where  such  a  rule  prevails,  we  do  not  understand,  that  there  could 
be  the  slightest  difference  in  the  responsibility  of  the  owner  for  the  torts  of 
the  master,  whether  the  contract  was  for  passage  or  freight,  whether  the 
contract  entered  into  with  one  or  the  other.  We  repeat,  therefore,  that 
we  cannot  see  how  the  question,  whether  the  agent  exceeded  his  powers, 
is  at  all  involved  in  the  inquiry  before  us.  The  moment  it  is  admitted,  or 
established,  that  the  master's  agreement  for  carrying  passengers  was  on 
terms,  such  as  he  was  authorized  to  nnake,  its  legal  consequences  must 
depend  on  other  principles  than  those  of  the  law  of  the  contract  of  man- 
date. The  agreement  must  have  the  same  effect  as  if  entered  into  with 
the  owner  personally.  If  then  the  defendant  had  gone  himself  to  Vera 
Cruz,  and  entered  into  a  contract  with  a  man  there,  which  was  to  be  per- 
formed in  the  island  of  Cuba,  would  it  have  been  governed  by  the  law  of 
Louisiana?  Now,  if  there  be  a  principle  better  established  than  any  other 
on  the  subject  of  the  conflict  of  laws,  it  is,  that  contracts  are  governed  by 
the  laws  of  the  country  in  which  they  are  entered  into,  unless  they  be  so 
with  a  view  to  a  performance  in  another.  Every  writer  on  that  subject 
recognizes  it.  Judicial  decisions  again  and  again  through  the  civilized 
world  have  sanctioned  it.  Why  then  should  this  form  an  exception  ? 
Why  should  the  contract  of  affreightment,  or  for  the  conveyance  of  pas- 
sengers, stand  on  different  grounds  than  those  of  buying  and  selling  mer- 
chandise ?  Whoever  contracts  in  a  particular  place  subjects  himself  to  its 
laws,  as  a  temporary  citizen.  The  idea  that  the  law  of  a  man's  domicil 
follows  him  through  the  world,  and  attaches  to  all  his  contracts,  is  as 
novel  as  unfounded.  The  proposition  was  not,  indeed,  maintained  in 
general  terms ;  but  that  offered  to  the  Court  in  relation  to  the  contract  is 
identical  with  it ;  and  it  is  impossible  for  us  not  to  feel,  that,  if  the  defend- 
ant and  appellant  is  to  have  the  contract  decided  by  the  laws  of  Louisiana, 
it  will  be  equivalent  to  a  declaration  of  this  amount,  that  an  inhabitant  of 
this  State  carries  its  laws  with  him  wherever  he  goes,  and  they  regulate 
and  govern  his  contracts  in  foreign  countries  —  that,  whether  a  man  con- 
tracts with  him  in  Paris  or  London,  our  municipal  regulations  are  the 
measure  of  the  rights  and  duties  of  both  parties  to  the  contract.  That  the 
legislature  of  Louisiana  may  have  a  right  to  regulate  the  contracts  of  her 

1  Pope  V.  Nickerson,  3  Story,  R.  465. 


448  CONFLICT    OF   LAWS.  [CH.   VIIL 

ferent  rule  was  adopted.     In  that  case  a  vessel,  owned 
in  Massachusetts,  being   on  a  voyage  from  a  port  in 


own  citizens  in  every  country  so  long  as  they  owe  her  allegiance,  may  or 
may  not  be  true.  But  where  the  citizen  contracts  abroad,  with  a  foreigner, 
it  is  evident  the  rule  must  be  limited  in  its  operation.  The  legislature 
may  refuse  permission  to  enforce  the  agreement  at  home  ;  but  abroad,  and 
particularly  where  the  agreement  is  entered  into,  it  is  valid.  The  general 
rule,  however,  is  never  to  extend  the  prohibition  to  contracts  made  abroad 
unless  there  be  an  express  declaration  of  the  legislative  will.  We  there- 
fore conclude,  that  as  the  master  was  sent  with  the  vessel  to  Vera  Cruz 
to  take  passengers  ;  as  he  acted  as  the  owner's  agent  in  making  the  agree- 
ment, and  this  is  admitted  by  the  answer ;  and  as  the  limitation  to  the 
responsibility  is  resisted  on  grounds  which  would  have  an  equal  force,  if 
the  agreement  had  been  made  with  him  personally,  we  are  bound,  in  our 
inquiry  as  to  the  law  which  governs  the  agreement,  to  consider  it  as  made 
personally  by  the  owner,  and  it  is  to  be  governed,  not  by  the  laws  of  his 
domicil,  but  by  those  of  the  country  in  which  it  was  entered  into  and  to  be 
performed.  But,  although  the  case  does  not  present  the  question  of  the 
owner's  responsibility  in  relation  to  the  contract  of  mandate,  the  agent 
having  confined  himself  within  his  powers ;  yet,  as  the  argument  has 
placed  the  immunity  claimed  by  the  defendant  and  appellant  on  that 
ground,  it  is  well  to  notice  it  more  particularly.  If  we  understood  the 
arguments  correctly,  it  was  contended,  that  the  laws  of  Louisiana,  having 
put  some  limitations  to  the  power  of  the  master  to  bind  the  owner,  any 
contract  of  the  former,  in  a  foreign  country,  must  be  subject  to  the  limit- 
ation ;  and  if  they  be  exceeded,  there  is  an  end  to  the  latter's  responsibility. 
W^here  a  general  power  is  confined  to  an  agent,  the  party  contracting 
■with  him  is  not  bound  by  any  limitation,  which  the  principal  may  have 
affixed,  at  the  time  or  since,  by  distinct  instructions.  Now,  in  the  case 
before  us,  if  instructions  be  supposed  to  have  been  given  to  the  master, 
not  to  bind  the  owner  beyond  the  value  of  the  vessel  and  freight,  or  for 
any  act  which  the  latter  could  not  prevent,  would  parties  contracting  with 
the  former,  in  a  foreign  country,  be  bound  by  them?  We  think  it  is  cer- 
tain they  would  not.  Every  contract,  w^hich  by  the  general  maritime  law 
the  master  can  make,  is  binding  on  the  owner.  By  putting  the  former  in 
command,  and  sending  him  abroad,  the  latter  invests  him  with  the  general 
powers  masters  have  as  such,  and  those  who  contract  with  him  have 
nothing  to  do  with  any  private  instructions  by  which  the  general  power 
may  have  been  limited.  If  the  limitation  arises  not  from  the  owner's 
instructions,  but  from  the  particular  laws  of  the  country  from  which  the 
vessel  has  sailed,  must  not  the  consequences  be  the  same  ?  Can  these 
laws  limit  the  master's  power  more  effectually  than  the  owner  could,  or 
can  they  extend  farther?    We  think  not.    They  have  no  force  in  a  foreign 


CH.  VIII.]  FOREIGN    CONTRACTS.  449 

Spain  to  a  port  in  Pennsylvania,  was  compelled  by  stress 
of  weather  to  put  into  Bermuda,  where  the  master  sold 


country,  where  they  are  presumed  to  be  equally  unknown.  Em6rigon, 
treating  of  the  case,  where  the  master  was  prohibited  from  taking  des 
deniers  a  la  grosse,  during  the  voyage,  examines  the  question,  whether 
those  who  furnished  them  would  have  an  action  against  the  owner.  He 
cites  all  the  texts  of  the  Roman  laws,  on  which  the  negative  can  be  main- 
tained, and  concludes,  that  if  the  lender  had  no  knowledge  of  the  prohibi- 
tions, the  owner  would  be  responsible;  that  those  who  contract  with  him 
in  a  foreign  country,  have  a  right  to  presume  he  is  clothed  with  all  the 
powers  which  belong  to  his  station.  Boulay  Paty  is  of  the  same  opinion, 
as  to  the  responsibilities  of  the  owner  for  the  acts  of  the  master  appointed  by 
him,  whom  they  put  in  command,  with  a  special  prohibition  from  making 
a  subrogation  of  his  powers.  (2  Em^rig.  Contrats  a  la  Grosse,  ch.  4, 
^  8  ;  Boulay  Paty,  289.)  In  another  part  of  his  work,  Em^rigon  treats  of 
the  power  of  a  master  to  draw  bills  on  his  owners  in  a  foreign  port,  con- 
trary to  the  authority  given  by  the  ordinance,  and  he  considers  he  cannot, 
because  he  exceeds  the  powers  of  his  legal  mandate.  In  support  of  this 
opinion  he  cites  decisions  in  opposition  to  what  he  says  was  the  former 
jurisprudence  of  France,  founded  on  the  authority  of  Valin.  He  seems  to 
conclude  the  rule  is  firmly  fixed,  as  he  understood  it.  But  we  find  it  was 
not  generally  adopted.  Boulay  Paty  states,  that  opinions  were  divided, 
and  the  Chamber  of  Commerce  of  Nantz,  in  their  observations  on  the  Code 
of  Commerce,  observe,  it  is  a  question  often  agitated  and  which  had  been 
decided  in  different  ways.  (3  Em6rig.  Contracts  k  la  Grosse,  ch.  4,  ^  11, 
p.  [441]  458  ;  2  Boulay  Paty,  71.)  The  new  Code  adopted  Valin's  doc- 
trine. But  Emerigon,  who  is  an  author  of  distinction,  in  treating  of  the 
question,  says,  that  although  the  master  cannot  abroad  go  beyond  the 
legal  mandate,  provided,  that  his  contract  (son  raccord)  or  the  general 
mercantile  laws  give  him  a  more  extensive  power,  a  moins  que  son  rac- 
cord ou  le  droit  commune,  en  certant  cas,  ne  lui  donne  un  pouvoir  plus 
etendu.  (2  Em6rig.  Contrats  a  la  Grosse,  ch.  ^  11,  p.  452.)  The  gene- 
ral rule,  where  there  is  no  statute,  limiting  the  owner's  responsibility,  is, 
that  he  is  responsible  for  all  damages  done  by  the  master,  while  acting 
within  the  scope  of  his  powers.  Abbott  states,  that  this  is  the  doctrine  of 
the  common  and  civil  law,  and  so  do  all  the  writers,  we  have  been  able 
to  consult.  In  Chancellor  Kent's  late  work,  and  in  Judge  Story's  edition 
of  Abbott,  it  is  stated,  that  the  owner  is  bound  for  the  whole  amount  of 
the  injury  done  by  the  master  or  crew,  unless  where  ordinances  and 
statutes  have  established  a  different  rule.  3  Kent,  Comm.  172  ;  Abbott 
on  Shipping,  edit.  1829;  1  Pothier,  Oblig.  n.  451,  452.  If  this  question 
turned  on  the  master's  having  exceeded  his  powers,  we  are  inclined  to 
think,  that,  as  the  general  rule  authorized  him  to  bind  the  owner  to  the 
38* 


450  CONFLICT    OF   LAWS.  [CH.  VIIL 

the  vessel  and  whole  cargo.  In  an  action  by  the  ship- 
pers against  the  owners  to  recover  the  amount  of  their 
consignment,  in  which  the  right  of  the  master  to  sell  the 
whole  cargo  and  thus  involve  the  owners  was  directly 
in  issue,  it  was  determined  that  the  liability  of  the 
owners  was  governed  by  the  law  of  Massachusetts, 
where  they  resided,  and  not  by  the  law  of  Spain,  where 
the  contract  of  shipment  was  made,  nor  by  the  law  of 
Pennsylvania,  where  the  goods  were  to  be  delivered ; 
and  the  cases  in  Louisiana,  just  referred  to,  were  not 
approved.] 

§  286  d.  Another  case  may  readily  be  suggested  as 
to  the  conflict  of  laws  in  cases  of  Agency.  Let  us  sup- 
pose, that  A.,  in  Massachusetts,  should  by  a  letter  of 
attorney,  duly  executed  in  Boston,  authorize  B.,  his 
agent  in  New  Orleans,  to  sell  his  ship,  then  lying  in 
New  Orleans,  and  to  execute  a  bill  of  sale  in  his  (A.'s) 
name,  to  the  purchaser,  and  B.  should  accept  the  agency 
and  sell  the  ship  after  the  death  of  A.,  but  before  he 
had  received,  or  could  receive  any  notice  thereof,  and 
should  execute  a  bill  of  sale  in  A.'s  name  to  the  pur- 
chaser. In  such  a  case,  the  question  might  arise, 
(especially  if  A.  died  insolvent,  or  the  money  was  in- 
vested in  pursuance  of  other  orders  of  A.  in  goods 
which  had  perished  by  fire,  or  other  accident,)  whether 
the  bill  of  sale  was  valid  or  not  valid.  By  the  law  of 
Massachusetts  a  letter  of  attorney  is  revoked  by  the 
death  of  the  principal,  whether  known  or  unknown,  and 
all  acts  done,  after  his  death,  under  it  are  mere  nulli- 


extent  contracted  for,  the  plaintiff  and  appellant,  who  contracted  with  him, 
was  unaffected  by  a  limitation  in  a  statute  of  another  country,  of  which  he 
could  not  be  presumed  to  have  any  knowledge,  and  to  the  authority  of 
which  he  was  not  subject." 


CH.  VIII.]  FOREIGN   CONTRACTS.  451 

ties.'  By  the  law  of  Louisiana,  if  an  attorney,  being 
ignorant  of  the  death,  or  of  the  cessation  of  the  rights 
of  his  principal,  should  continue  to  act  under  his  power 
of  attorney,  the  transactions  done  by  him,  during  this 
state  of  ignorance,  would  be  valid.^  Assuming,  that 
this  provision  covers  all  cases,  not  only  when  the  trans- 
action is  executed  in  the  name  of  the  agent,  but  also 
when  it  is  executed  in  the  name  of  the  principal,  upon 
which  some  doubt  may  be  entertained,  (as  a  dead  man 
cannot  act  at  all,^)  still  the  question  would  be,  by  what 
law  the  letter  of  attorney,  with  reference  to  its  revoca- 
bility,  duration,  and  effect,  is  to  be  governed.  The 
general  rule  certainly  is,  that  all  the  instruments,  made 
and  executed  in  a  country,  take  effect,  and  are  to  be 
construed,  as  to  their  nature,  operation,  and  extent, 
according  to  the  law  of  the  country  where  they  are 
made  and  executed.  Locus  regit  actum.'^  But  the 
question  here  would  be,  whether,  as  the  execution  of 
the  power  was  to  be  in  another  country,  the  power 
should  not  be  construed  and  executed,  and  its  nature, 
operation  and  extent,  ascertained  by  the  law  of  the  lat- 
ter, as  an  exception  to  the  general  rule.  There  is  no 
doubt,  that  where  an  authority  is  given  to  an  agent  to 
transact  business  for  his  principal  in  a  foreign  country, 
it  must  be  construed,  in  the  absence  of  any  counter 
proofs,  that  it  is  to  be  executed  according  to  the  law  of 
the  place  where  the  business  is  to  be  transacted.^    But 


'  Story  on  Agency,  (^  488,  489. 

2  Code  Civil  of  Louisiana,  art.  3001.  Tlie  Civil  Code  of  France  con- 
tains a  similar  regulation.  Code  Civil  of  France,  art.  2008  ;  Polhier  on 
Oblig.  n,  81. 

3  See  Story  on  Agency,  §  491  to  ^  499. 
*  Ante,  ^  2G3. 

5  Ovvings  V.  Hull,  9  Peters,  R.  607,  627,  628. 


452  CONFLICT    OF   LAWS.  [CIL  VIIL 

this  may  well  be  admitted  to  be  the  rule,  while  the 
authority  is  in  full  force,  without  making  the  law  of 
that  place  the  rule,  by  which  to  ascertain,  whether  the 
original  power  of  attorney  is  still  subsisting,  or  is  re- 
voked, or  dead  by  operation  of  law  in  the  place  of  its 
origin.  The  point  has  never,  as  far  as  my  researches 
extend,  been  directly  decided  either  at  home  or  abroad ; 
and,  therefore,  it  is  submitted  to  the  learned  reader  for 
his  consideration.  Some  of  the  cases  already  alluded 
to  may  be  thought  to  furnish  an  analogy  unfavorable  to 
the  validity  of  the  sale.^ 

§  287.  Another  class  of  cases  may  be  stated.  A 
merchant  in  one  country  sends  a  letter  to  a  merchant 
in  another,  requesting  him  to  purchase  goods,  and  to 
draw  on  him  for  the  amount  of  the  purchase-money  by 
bills.  In  which  country  is  the  contract,  for  the  repay- 
ment of  the  advances,  if  the  purchase  is  made,  to  be 
deemed  to  be  made  ?  Is  it  in  the  country  where  the 
letter  is  written,  and  on  which  the  drafts  are  authorized 
to  be  drawn  ?  Or  where  the  goods  are  purchased  ? 
The  decision  has  been,  that  when  such  advances  are 
made,  the  undertaking  is  to  replace  the  money  at  the 
same  place  at  which  the  advances  are  made ;  and, 
therefore,  the  party  advancing  will  be  entitled  to  inte- 
rest on  the  advances  according  to  the  law  of  the  place 
of  the  advances.^  So,  if  advances  are  made  for  a  fo- 
reign merchant  at  his  request,  or  security  is  given  for  a 
debt,  the  party  paying,  or  advancing,  is  in  like  manner 


1  Ante,  §  286  b,  ^  286  c. 

2  Lanusse  v.  Barker,  3  Wheat.  R.  101,  146;  Grant  v.  Healey,  2 
Chand.  Law  Reporter,  113  ;  S.  C.  3  Sumner,  R.  523  ;  ante,  §284  a.  But 
see  contra,  Ballister  v.  Hamilton,  3  Louis.  Ann.  R.  401.  See  also  Hertii 
Opera,  Tom.  1,  De  Collis.  Leg.  §  4,  n.  55,  p.  147,  edit.  1737  ;  Id.  p.  208, 
edit.  1716. 


CH.  VIII.]  FOREIGN   CONTRACTS.  453 

entitled  to  repayment  in  the  place  where  the  advances 
are  made,  or  the  security  is  given,  unless  some  other 
place  is  stipulated  therefor.^  [So,  where  a  proposal  to 
purchase  goods  is  made  by  letter  sent  from  one  State 
to  another  State,  and  is  there  assented  to,  the  contract 
of  sale  is  made  in  the  latter  State.^] 

§  287  «.  So,  where  a  loan  is  made  in  one  State,  and 
security  is  to  be  given  therefor  in  another  State  by  way 
of  mortgage  ;  it  may  be  asked,  what  law  is  to  govern 
in  relation  to  the  contract  and  its  incidents  ?  The  de- 
cision has  been,  that  the  law  of  the  place  where  the 
loan  is  made,  is  to  govern ;  for  the  mere  taking  of  a 
foreign  security  does  not  (it  is  said)  necessarily  alter 
the  locality  of  the  contract.  Taking  such  security 
does  not  necessarily  draw  after  it  the  consequence,  that 
the  contract  is  to  be  fulfilled,  where  the  security  is 
taken.  The  legal  fulfilment  of  a  contract  of  loan  on 
the  part  of  the  bondsman  is  repayment  of  the  money ; 
and  the  security  given  is  but  the  means  of  securing 
what  he  has  contracted  for,  which,  in  the  eye  of  the 
law,  is  to  pay,  where  he  borrows,  unless  another  place 
of  payment  be  expressly  designated  by  the  contract.^ 
But  if  the  mortgage  is  actually  to  be  executed  in  a 
foreign  country,  and  the  money  is  to  be  paid  there,  the 
loan  will  be  deemed  to  be  there  completed,  although 
the  money  may  have  been  actually  advanced  else- 
where.'* 


1  Bayle  v.  Zacharie,  6  Peters,  R.  635,  G43,  644 ;  post,  ^  320  a. 

2  Mclntyre  v.  Parks,  3  Mete.  207. 

3  De  Wolf  V.  Johnson,  10  Wheaton,  R.  367,  383.  See  also  Ranelagh 
V.  Charapant,  2  Vern.  R.  395,  and  Raithby's  note  ;  Conner  v.  Bellamont, 
2  Atk.  3S2  ;  post,  §  293.  See  Chapman  v.  Robertson,  G  Paige,  R.  627, 
630  ;  post,  ^  293  b. 

4  De  "Wolf  V.  Johnson,  10  Wheaton,  R.  367;  Hosford  v.  Nichols,  1 


454  CONFLICT    OF   LAWS.  [CH.  VIII. 

§  288.  A  case  some  what  different  in  its  circumstances, 
but  illustrative  of  the  general  principle,  occurred 
formerly  in  England.  By  a  settlement  made  upon  the 
marriage  of  A.  in  England,  a  term  of  five  hundred 
years  was  created  upon  estates  in  Ireland,  in  trust  to 
raise  £12,000  for  the  portions  of  daughters.  The  par- 
ties to  the  settlement  resided  in  England  ;  and  a  ques- 
tion afterwards  arose,  whether  the  £12,000,  charged 
on  the  term  of  years,  should  he  paid  in  England,  with- 
out any  abatement  or  deduction  for  the  exchange  from 
Ireland  to  England.  It  was  decided  that  the  portion 
ought  to  be  paid  in  England,  where  the  contract  was 
made,  and  the  parties  resided ;  and  not  in  Ireland, 
where  the  lands  lay,  which  were  charged  with  the  pay- 
ment ;  for  it  was  a  sum  in  gross,  and  not  a  rent  issuing 
out  of  the  land.^ 

§  289.  Let  us  take  another  case.  A  merchant,  resi- 
dent in  Ireland,  sends  to  England  certain  bills  of  ex- 
change, with  blanks  for  the  dates,  the  sums,  the  times 
of  payment,  and  the  names  of  the  drawees.  These 
bills  are  signed  by  the  merchant  in  Ireland,  indorsed 
with  his  own  name  and  dated  from  a  place  in  Ireland, 
and  are  transmitted  to  a  correspondent   in   England, 


Paige,  R.  221  ;  Lloyd  v.  Scott,  4  Peters,  R.  211,  229,  — Whether  a  con- 
tract, made  in  one  State,  for  the  sale  of  lands  situate  in  another  State, 
on  credit,  reserving  interest  at  the  legal  rate  of  interest  of  the  State 
■where  the  lands  lie,  but  more  than  that  of  the  State  where  the  contract  is 
made,  would  be  usurious,  has  been  much  discussed  in  the  State  of  New 
York.  In  Van  Schaick  v.  Edwards,  2  Johns.  Cas.  355,  the  judges  were 
divided  in  opinion  upon  the  question.  See  also  Hosford  v.  Nichols,  1 
Paige,  Ft.  220,  and  Dewar  v.  Span,  3  T.  R.  425  ;  ante,  ^  279  a. 

1  Phipps  V.  Earl  of  Anglesea,  cited  5  Vin.  Abridg.  209,  pi.  8  ;  2  Eq. 
Abridg.  220,  pi.  1  ;  Id.  751,  pi.  3  ;  1  P.  Will.  696  ;  2  Bligh,  Pari.  R. 
88,  89.  See  also  Lansdowne  v.  Lansdowne,  2  Bligh,  Pari.  R.  60  ;  Sta- 
pleton  V.  Conway,  3  Atk.  727  ;  S.  C.  1  Ves.  427. 


CH.  VIII.]  FOREIGN   CONTRACTS.  455 

with  authority  to  him  to  fill  up  the  remaining  parts  of 
the  instrument.  The  correspondent  in  England  accord- 
ingly fills  them  up,  dated  at  a  place  in  Ireland.  Are 
the  bills,  when  thus  filled  up,  and  issued,  to  be  deemed 
English,  or  Irish  contracts  ?  It  has  been  held,  that 
under  such  circumstances  they  are  to  be  deemed  Irish 
contracts,  and  of  course  to  be  governed,  as  to  stamps 
and  other  legal  requisitions,  by  the  law  of  Ireland  ;  and 
that  as  soon  as  they  are  filled  up,  the  whole  transaction 
relates  back  to  the  time  of  the  original  signature  of 
the  drawer.^  One  of  the  learned  judges  on  that  occa- 
sion said,  that  if  the  drawer  had  died,  while  the  bills 
were  on  their  passage,  and  afterwards  the  blanks  had 
been  filled  up,  and  the  bill  negotiated  to  an  innocent 
indorsee,  the  personal  representatives  of  the  drawer 
would  have  been  bound.- 

§  290.  Bonds  for  the  faithful  discharge  of  the  duties 
of  office  are  often  given  with  sureties,  by  public  offi- 
cers, to  the  government  of  the  United  States ;  and  it 
sometimes  happens,  that  the  bonds  are  executed  by  the 
principals  in  one  State,  and  by  the  sureties  in  a  differ- 
ent State,  or  in  different  States.  What  law  is  in  such 
cases  to  regulate  the  contract?  The  rights  and  duties 
of  sureties  are  known  to  be  different  in  different  States. 
In  Louisiana  one  system  prevails,  deriving  itself  mainly 
from  the  civil  law ;  in  other  States  a  different  system 
prevails,  founded  on  the  common  law.  It  has  been  de- 
cided, that  the  bonds  in  such  cases  must  be  treated  as 
made  and  delivered,  and  to  be  performed  by  all  the 
parties,  at  the  seat  of  the   government  of  the  Union, 


1  Snaith  v.  Mino:ay,  1  Maule  &  Selw.  87. 

2  Mr.  Justice  Bayley,  ibid.  p.  95. 


456  CONFLICT    OF   LAWS.  [CH.  VIIL 

upon  the  ground  that  the  principal  is  hound  to  account 
there  ;  and,  therefore,  hy  necessary  implication,  all  the 
other  parties  look  to  that,  as  the  place  of  performance, 
by  the  law  of  which  they  are  to  be  governed/ 

§  291.  The  question,  also,  often  arises  in  cases  re- 
specting the  payment  of  interest.  The  general  rule  is 
that  interest  is  to  be  paid  on  contracts  according  to 
the  law  of  the  place  where  they  are  to  be  performed, 
in  all  cases,  where  interest  is  expressly  or  impliedly  to 
be  paid.^     Usurum  modus  ex  more  regionis,  iibi  contractmn 


1  Cox  and  Dick  v.  United  States,  6  Peters,  R.  172,  202  ;  Duncan  v. 
United  States,  7  Peters,  R.  435. 

2  Fergusson  v.  Fyffe,  8  Clark  &  Finnell.  121,  140  ;  Post,  ^  292,  293, 
kj  293  a  to  ^  293  e,  ^  304  ;  Conner  v.  Bellamont,  2  Vern.  R.  382  ;  Cash 
v.  Kennion,  11  Vesey,  R.  314  ;  Robinson  v.  Bland,  2  Burr.  R.  1077; 
Ekins  V.  East  India  Company,  1  P.  W.  395  ;  Ranelagh  v.  Champant, 
2  Vern.  R.  395,  and  note  ibid,  by  Raithby  ;  1  Chitty  on  Coram.  &  Manuf. 
ch.  12,  p.  650,  651  ;  3  Chitty,  Id.  ch.  1,  p.  109  ;  Eq.  Abridg.  Interest,  E. ; 
Henry  on  Foreign  Law,  43,  note ;  Id.  53  ;  2  Kames,  Equity,  B.  3,  ch.  8, 
^  1  ;  2  Fonbl.  Eq.  B.  5,  ch.  1,  6  6,  and  note;  Bridgman's  Equity  Digest, 
Interest,  vii.  ;  Fanning  v.  Consequa,  17  Johns.  R.  511  ;  S.  C.  3  Johns. 
Ch.  R.  610;  Hosfordf.  Nichols,  1  Paige,  R.  220  ;  Houghton  v.  Page, 
2  N.  Hamp.  R.  42  ;  Peacock  v.  Banks,  1  Minor,  R.  387  ;  Lapice  v. 
Smith,  13  Louis.  R.  91,  92  ;  Thomson  v.  Ketchum,  4  Johns.  R.  285  ; 
Stewart  v.  Ellice,  2  Paige,  604  ;  Mullen  v.  Morris,  2  Barr,  85  ;  Healy  v. 
Gorman,  3  Green,  N.  J.  R.  328;  2  Kent,  Coram.  Lect.  39,  p.  460,  461, 
3d  edit.  —  A  case,  illustrative  of  this  principle,  recently  occurred  before 
the  House  of  Lords.  A  widow  in  Scotland  entered  into  an  obligation  to 
pay  the  whole  of  her  deceased  husband's  debts.  It  was  held  by  the 
Court  of  Sessions  in  Scotland,  that  the  English  creditors,  on  contracts 
made  in  England,  were  entitled  to  recover  interest  in  all  cases,  where  the 
law  of  England  gave  interest,  and  not  where  it  did  not.  Therefore,  on 
bonds,  and  bills  of  exchange,  interest  was  allowed,  and  on  siraple  con- 
tracts not.  And  this  decision  was  aflirraed  by  the  House  of  Lords.  Mont- 
gomery V.  Budge,  2  Dow  &:  Clark,  Rep.  297.  The  case  of  Arnolt  v, 
Redfera  (2  Carr.  &  Payne,  88,)  may  at  first  view  seem  inconsistent  with 
the  general  doctrine.  There  the  original  contract  was  made  in  London 
between  an  Englishman  and  a  Scotchman.  The  latter  agrees  to  go  to 
Scotland  as  agent  four  times  a  year,  to  sell  goods,  and  collect  debts  for 
the  other  party,  to  remit  the  money,  and  to  guarantee  one  fourth  part  of 


CH.  VIII.]  FOREIGN   CONTRACTS.  457 

est,  constihiUur,  says  the  Digest.^  Thus,  a  note  made  in 
Canada,  where  interest  is  six  per  cent.,  payable  with 
interest  in  England,  where  it  is  five  per  cent.,  bears 
English  interest  only.~  Loans  made  in  a  place  bear 
the  interest  of  that  place,  unless  they  are  payable  else- 
where.^ And,  if  payable  in  a  foreign  country,  they 
may  bear  any  rate  of  interest  not  exceeding  that  which 
is  lawful  by  the  laws  of  that  country.*  And,  on  this 
account,  a  contract  for  a  loan  made,  and  payable  in  a 
foreign  country,  may  stipulate  for  interest  higher  than 


the  sales  ;  and  he  was  to  receive  one  per  cent,  upon  the  annount  of  sales, 
&c.  The  agent  sued  for  the  balance  of  his  account  in  Scotland,  and  the 
Scotch  Court  allowed  him  interest  on  it.  The  judgment  was  afterwards 
sued  in  England  ;  and  the  question  was,  whether  interest  ought  to  be 
allowed.  Lord  Chief  Justice  Best  said  ;  "  Is  this  an  English  transaction? 
For,  if  it  is,  it  will  be  regulated  by  the  rules  of  English  law.  But,  if  it 
is  a  Scotch  transaction,  then  the  case  will  be  different."  He  afterwards 
added,  "This  is  the  case  of  a  Scotchman,  who  comes  into  England  and 
makes  a  contract.  As  the  contract  was  made  in  England,  although  it  was 
to  be  executed  in  Scotland,  I  think,  it  ought  to  be  regulated  according  to 
the  rules  of  the  English  law.  This  is  my  present  opinion.  These  ques- 
tions of  international  law  do  not  often  occur."  And  he  refused  interest, 
because  it  was  not  allowed  by  the  law  of  England.  The  Court  after- 
wards ordered  interest  to  be  given,  upon  the  ground  that  the  balance  of 
such  an  account  would  carry  interest  in  England.  But  Lord  Chief  Justice 
Best  rightly  expounded  the  contract  as  an  English  contract,  though  there 
is  a  slight  inaccuracy  in  his  language.  So  far  as  the  principal  was  con- 
cerned, the  contract  to  pay  the  commission  was  to  be  paid  in  England. 
The  services  of  the  agent  were  to  be  performed  in  Scotland.  But  the 
whole  contract  was  not  to  be  executed  exclusively  there  by  both  parties. 
A  contract  made  to  pay  money  in  England,  for  services  performed  abroad, 
is  an  English  contract,  and  will  carry  English  interest. 

1  Dig.  Lib.  22,  tit.  1,  1.  1  ;  2  Burge,  Comm.  on  Col.  and  For.  Law, 
Pt.  2,  ch.  9,  p.  860,801,  862. 

2  Scofield  V.  Day,  20  Johns.  R.  102. 

3  De  Wolf  V.  Johnson,  10  VVheaton,  R.  367,  383;  Consequa  v.  Wil- 
ling, Peters,  Cir.  R.  225  ;  2  Boullenois,  Observ.  40,  p.  477,  478  ;  An- 
drev/s  v.  Pond,  13  Peters,  R.  65,  78. 

4  Ibid.;  2  Kent,  Comm.  Lect.  39,  p.  460,  461,  3d  edit.  ;  Thomson  v. 
Ketchum,  4  Johns.  R.  285  ;  Healy  v.  Gorman,  3  Green,  N.  J.  R.  328. 

CONFL,  30 


458  CONFLICT    OF   LAWS.  [CH.  VIII. 

that  allowed  at  home.'  If  the  contract  for  interest  be 
illegal  there,  it  will  be  illegal  everywhere.^  But  if  it 
be  legal  where  it  is  made,  it  will  be  of  universal  obli- 
gation, even  in  places  where  a  lower  interest  is  pre- 
scribed by  law.^ 

§  292.  The  question,  therefore,  whether  a  contract  is 
usurious  or  not,  depends,  not  upon  the  rate  of  the  inte- 
rest allowed,  but  upon  the  validity  of  that  interest  in 
the  country,  where  the  contract  is  made,  and  is  to  be 
executed.^  A  contract  made  in  England  for  advances 
to  be  made  at  Gibraltar,  at  a  rate  of  interest  beyond 
that  of  England,  would,  nevertheless,  be  valid  in  Eng- 


1  2  Kent,  Cotnm.  Lect,  39,  p.  460,  461,  3d  edit.  ;  Hosford  v.  Nichols, 
1  Paige,  R.  220;  Houghton  v.  Paige,  2  N.  Hamp.  R.  42  ;  Thomson  v. 
Powles,  2  Simons,  R.  194.  In  this  last  case  the  Vice-Chancellor  said  : 
"  With  respect  to  the  question  of  usury,  in  order  to  hold  the  contract  to 
be  usurious  it  must  appear  that  the  contract  was  made  here,  and  that  the 
consideration  for  it  was  to  be  paid  here.  It  should  appear  at  least,  that 
the  payment  was  not  to  be  made  abroad  ;  for  if  it  was  to  be  made  abroad 
it  would  not  be  usurious."  See  also  Andrews  v.  Pond,  13  Peters,  R. 
65,  78  ;  De  Wolf  v.  Johnson,   10  Wheat.  R.  383. 

2  2  Kames,  Equity,  B.  3,  ch.  8,  ^  1 ;  Hosford  v.  Nichols,  1  Paige,  R, 
220  ;  2  Boullenois,  Observ.  46,  p.  477.  — In  the  case  of  Thompson  v. 
Powles,  (2  Simons,  R.  194,)  the  Vice-Chancellor  said,  "In  order  to  have 
the  contract  (for  stock)  usurious,  it  must  appear  that  the  contract  was  made 
here,  and  that  the  consideration  for  it  was  to  be  paid  here."  See  also 
Yrisarri  v.  Clement,  2  Carr.  &  Payne,  R.  223.  In  Hosford  v.  Nichols, 
(1  Paige,  R.  220,)  where  a  contract  was  made  for  the  sale  of  lands  in  New- 
York,  by  citizens  then  resident  there,  and  the  vendor  afterwards  removed 
to  Pennsylvania,  where  the  contract  was  consummated,  and  a  mortgage 
given  to  secure  the  unpaid  purchase-money,  with  New  York  interest, 
(which  was  higher  than  that  of  Pennsylvania,)  the  Court  thought  the 
mortgage  not  usurious,  it  being  only  a  consummation  of  the  original  bar- 
gain made  in  New  York. 

3  Ibid. 

4  Haivey  v.  Archbold,  1  Ryan  &  Mood.  R.  184  ;  S.  C.  3  B.  &  C.  626 ; 
Phelps  V.  Kent,  4  Day,  96  ;  Pratt  v.  Adams,  7  Paige,  616  ;  Greenwade 
V.  Greenwade,  3  Dana,  497  ;  Andrews  v.  Pond,  13  Peters,  R.  65,  78  ; 
Ante,  ^  243. 


CH.  VIII.]  FOREIGN   CONTRACTS.  459 

land ;  and  so  a  contract  to  allow  interest  upon  credits 
given  in  Gibraltar  at  such  higher  rate,  would  be  valid 
in  favor  of  the  English  creditor.^ 

§  292  a.  This  too  seems  to  be  the  doctrine  propounded 
by  Rodenburg,  who  says :  Status  quidem  aut  conditio 
personanim  dirigitur  a  loco  domicilii:  cwterimi  tamcn  in 
vinculo  cvjusque  ohligaiionis,  id  sciamus,  quos  olligct  conven- 
tion sjyectamv.s  leges  7'cgionis,  uhi  ilia  celchrcdur.  Quemad- 
modum  et  in  illicita  stipidatio7ie,  quce  legihus  est  interdicta, 
id  puta;  si  deUtuni  modum  usurarwn  excedit,  traditiim  est 
valere  pactum,  quo  foris  secundum  mores  illius  regionis  sti- 
pulati  sumus  proJdhitam  domi  usurarum  quantitatem.  Unde 
non  longe  abire  videtur,  quod  memini  niiper  apud  nos  res- 
ponsum  esse,  si  contracta  sit  eo  loci  ohligatio,  id)i  sortem  li- 
ceat  exigere  cum  tisuris,  id  maximejam  earum  aliqucc  essent 
persolutce.  Jure  caput  cu?n  itsuris  et  apud  nos  exigi,  id)i  usu- 
rarum solutione  protinils  via  petitioni  sortis  pcercluditur,  lo- 
cumque  sibi  vindicat  decantata  adeo  pareunia?  Burgundus 
is  still  more  direct  and  positive.^ 

§  293.  And  in  cases  of  this  sort,  it  will  make  no  dif- 
.  ference,  (as  we  have  seen,)  that  the  due  performance  of 
the  contract  is  secured  by  a  mortgage,  or  other  security, 
upon  property,  situate  in  another  country,  where  the 
interest  is  lower.^  For  it  is  collateral  to  such  contract, 
and  the  interest  reserved  being  according  to  the  law  of 
the  place  where  the  contract  is  made,  and  to  be  exe- 
cuted, there  does  not  seem  to  be  any  valid  objection  to 
giving  collateral   security  elsewhere,  to   enforce   and 


1  Ibid. 

2  Rodenburg,  Diversit.  Stat.  tit.  4,  Ps.  2,  ch.  2,  p.  92. 

3  Burgundus,  Tract.  4,  n.  10,  p.  109;  Post,  §  293  e,  ^  300  a;  2  Burge, 
Comm.  Pt.  2,  ch.  9,  p.  860,  861,  862. 

4  Ante,  §  287. 


460  CONFLICT   OF   LAWS.  [CH.  VIIL 

secure  the  due  performance  of  a  legal  contract.^  But, 
suppose  a  debt  is  contracted  in  one  country,  and  after- 
wards, in  consideration  of  farther  delay,  the  debtor  in 
another  country  enters  into  a  new  contract  for  the  pay- 
ment of  interest  upon  the  debt  at  a  higher  rate  than 
that  allowed  by  the  country  where  the  original  debt 
was  contracted,  but  not  higher  than  that  allowed  by 
the  law  of  the  country  where  it  is  so  stipulated ;  it 
may  be  asked  whether  such  stipulation  is  valid  ?  It 
has  been  decided  that  it  is.^  On  the  other  hand,  sup- 
pose the  interest  so  stipulated  is  according  to  the  rate 
of  interest  allowed  in  the  country  where  the  debt  was 
contracted,  but  higher  than  that  in  the  country  where 
the  new  contract  is  made ;  is  the  stipulation  invalid  ? 
It  has  been  decided  that  it  is.^  In  each  of  these  cases 
the  Lex  loci  contractus  was  held  to  govern  as  to  the  pro- 
per rate  of  interest. 

§  293  «.  In  the  cases  hitherto  stated,  the  transaction 
is  supposed  to  be  londfide  between  the  parties.  For  if 
the  transaction  is  a  mere  cover  for  usury,  as  if  the  trans- 
action is  in  form  a  bill  of  exchange  drawn  upon  and 
payable  in  a  foreign  country,  but  in  reality  the  parties 
resort  to  that,  as  a  mere  machinery  to  disguise  usury  in 
the  transaction  against  the  laws  of  the  country  where 
the  contract  is  made,  the  form  of  the  transaction  will  be 
treated  as  a  mere  nullity  j  and  the  Court  will  decide 


'  Conner  v.  Bellamont,  2  Atk.  R,  382  ;  Stapleton  v.  Conway,  3  Atk. 
R.  727;  S.  C.  1  Vesey,  R.  427;  De  Wolf  w.  Johnson,  10  W^heaton,  R. 
367,  383. 

2  Conner  v.  Bellamont,  2  Atk.  R.  382.  See  also  Hosford  v.  Nichols, 
1  Paige,  R.  220. 

3  Dewar  v.  Span,  3  T.  R.  435.  See  also  Stapleton  v.  Conway,  3  Atk. 
R.  382;  S.  C.  1  Vesey,  R.  427.  See  Chapman  u.  Robertson,  6  Paige, 
R.  627,  631. 


CH.  VIII.]  FOREIGN   CONTRACTS.  461 

according  to  tlie  real  object  of  the  parties.  Thus,  for 
example,  where  a  bill  of  exchange  was  drawn  in  New 
York  payable  in  Alabama,  and  the  bill  was  for  an  ante- 
cedent debt,  and  a  larger  discount  was  made  from  the 
bill,  greater  than  the  interest  in  either  State,  for  the 
supposed  difference  of  exchange,  the  Court  considered 
the  real  question  to  be  as  to  the  hona  fides  of  the  trans- 
action.    If  a  mere  cover,  it  was  usurious.* 


1  Andrews  v.  Pond,   13  Peters,  R,  65,  77,  78.     On  this  occasion  Mr. 
Chief  Justice  Taney  said  :  "  Another  question  presented  by  the  exception, 
and  much  discussed  here,  is,  whether  the  validity  of  this  contract  depends 
upon  the  laws  of  New  York  or  those  of  Alabama.    So  far  as  the  mere  ques- 
tion of  usury  is  concerned,  this  question  is  not  very  important.     There  is 
no  stipulation  for  interest  apparent  upon  the  paper.     The  ten  per  cent,  in 
controversy  is  charged  as  the  difference  in  exchange  only,  and  not  for 
interest  and  exchange.     And  if  it  were  otherwise,  the  interest  allowed  in 
New  York  is  seven  per  cent,  and  in  Alabama  eight ;  and  this  small  differ- 
ence of  one  per  cent,  per  annum,  upon  a  forbearance  of  sixty  days,  could 
not  materially  affect  the  rate  of  exchange,  and  could  hardly  have  any  influ- 
ence on  the  inquiry  to  be  made  by  the  jury.     But  there  are  other  consider- 
ations which  make  it  necessary  to  decide  this  question.     The  laws  of 
New  York  make  void  the  instrument  when  tainted  with  usury  ;  and  if  this 
bill  is  to  be  governed  by  the  laws  of  New  York,  and  if  the  jury  should 
find  that  it  was  given  upon  an  usurious  consideration),  the  plaintiff  would 
not  be  entitled  to  recover ;  unless  he  was  a  bona  fide  holder,  without  notice, 
and  had  given  for  it  a  valuable  consideration  ;  while  by  the  laws  of  Ala- 
bama, he  would  be  entitled  to  recover  the  principal  amount  of  the  debt, 
without  any  interest.     The  general  principle,  in  relation  to  contracts  made 
in  one  place  to  be  executed  in  another,  is  well  settled.     They  are  to  be 
governed  by  the  law  of  the  place  of  performance  ;  and  if  the  interest  allowed 
by  the  laws  of  the  place  of  performance  is  higher  than  that  permitted  at 
the  place  of  the  contract,  the  parties  may  stipulate  for  the  higher  interest, 
without  incurring  the  penalties  of  usury.     And  in  the  case  before  us,  if  the 
defendants  had  given  their  note  to  H.  M.  Andrews  &  Co.  for  the  debt  then 
due  to  them,  payable  at  Mobile,  in  sixty  days,  with  eight  per  cent,  interest, 
such  a  contract  would  undoubtedly  have  been  valid  ;  and  would  have  been 
no  violation  of  the  laws  of  New  York,  although  the  lawful  interest  in  that 
State  is  only  seven  per  cent.     And,  if  in  the  account  adjusted  at  tiie  time 
this  bill  of  exchange  was  given,  it  had  appeared  that  Alabama  interest  of 
eight  per  cent,  was  taken  for  the  forbearance  of  sixty  days,  given  by  the 
contract,  and  the  transaction  was  in  other  respects  free  from  usury,  such 
39* 


462  CONFLICT   OF   LAWS.  [CH.  VIIL 

293  I.  Indeed,  in  all  cases  of  this  sort  we  are  to  look 
to  tlie  real  intentions  of  the  parties,  and  their  acts  are 
expressive  of  them.  Thus,  where  a  citizen  of  New  York 
applied  in  England  to  a  British  subject  for  a  loan  of 
money  upon  the  security  of  a  bond  and  mortgage  upon 
land  in  New  York,  at  the  legal  rate  of -interest  (seven 
per  cent.)  of  that  State;  and  it  was  agreed  that  the 
borrower  should,  upon  his  return  to  New  York,  execute 
the  bond  and  mortgage,  and  duly  record  the  same ;  and 
upon  the  bond  and  mortgage  being  received  in  England, 
the  lender  agreed  to  deposit  the  money  loaned  at  the 
bankers  of  the  borrower  in  London  for  his  use  ;  and  the 
bond  and  mortgage  were  executed  and  received,  and 
the  money  paid  accordingly  to  the  bankers  ;  the  ques- 
tion arose,  whether  the  transaction  was  usurious  or  not ; 
and  that  depended  upon  the  law  of  the  place  by  which 


a  reservation  of  interest  would  have  been  valid  and  obligatory  upon  the 
defendants  ;  and  would  have  been  no  violation  of  the  laws  of  New  York. 
But  that  is  not  the  question  which  we  are  now  called  on  to  decide.  The 
defendants  allege,  that  the  contract  was  not  made  with  reference  to  the 
laws  of  either  State,  and  was  not  intended  to  conform  to  either.  That  a 
rate  of  interest  forbidden  by  the  laws  of  New  York,  where  the  contract 
was  made,  was  reserved  on  the  debt  actually  due  ;  and  that  it  was  con- 
cealed under  the  name  of  exchange,  in  order  to  evade  the  law.  Now,  if 
this  defence  is  true,  and  shall  be  so  found  by  the  jury,  the  question  is  not, 
which  law  is  to  govern  in  executing  the  contract ;  but,  which  is  to  decide 
the  fate  of  a  security  taken  upon  an  usurious  agreement,  which  neither 
will  execute?  Unquestionably,  it  must  be  the  law  of  the  State  where 
the  agreement  was  made,  and  the  instrument  taken  to  secure  its  perform- 
ance. A  contract  of  this  kind  cannot  stand  on  the  same  principles  with  a 
bona  fide  agreement  made  in  one  place  to  be  executed  in  another.  In  the 
last-mentioned  cases  the  agreements  were  permitted  by  the  lex  loci  con- 
tractus; and  will  even  be  enforced  there,  if  the  party  is  found  within  its 
jurisdiction.  But  the  same  rule  cannot  be  applied  to  contracts  forbidden 
by  its  laws  and  designed  to  evade  them.  In  such  cases,  the  legal  conse- 
quences of  such  an  agreement  must  be  decided  by  the  law  of  the  place 
where  the  contract  was  made.  If  void  there,  it  is  void  everywhere."  See 
Chapman  v.  Robertson,  6  Paige,  R.  627,  630,  631. 


CH.  Vin.]  FOREIGN    CONTRACTS.  463 

it  was  to  be  governed,  ^Yhetller  by  the  law  of  England 
(where  interest  is  only  five  per  cent.)  or  by  the  law  of 
New  York.  It  was  held  by  the  Court,  that  the  con- 
tract was  to  be  construed  according  to  the  laws  of  New 
York,  and  therefore  that  a  bill  to  foreclose  the  mort- 
gage, filed  in  New  York,  was  maintainable  ;  and  that 
the  law  of  usury  of  England  was  no  defence  to  the  suit. 
On  that  occasion  the  learned  Chancellor  said,  that  as 
no  place  of  payment  was  mentioned  in  the  bond  or  mort- 
gage, the  legal  construction  of  the  contract  was,  that 
the  money  was  to  be  paid  where  the  obligee  resided, 
or  wherever  he  might  be  found  ;  that  the  residence  of 
the  obligee,  being  in  England  at  the  time  of  the  execu- 
tion of  the  bond,  that  must  be  considered  the  place  of 
payment  for  the  purpose  of  determining  the  question 
where  that  part  of  the  contract  was  to  be  performed ; 
and  that  the  execution  of  the  bond  in  New  York  did 
not  make  it  a  personal  contract  there,  because  it  was 
inoperative  until  received  there,  and  the  money  depo- 
sited with  the  bankers  for  the  borrower.  And  he  con- 
cluded by  saying  :  "  Upon  a  full  examination  of  all  the 
cases  to  be  found  upon  the  subject,  either  in  this  coun- 
try, or  in  England,  none  of  which,  however,  appear  to 
have  decided  the  precise  question,  which  arises  in  this 
cause,  I  have  arrived  at  the  conclusion,  that  this  mort- 
gage, executed  here,  and  upon  property  in  this  State, 
being  valid  by  the  Lex  situs,  which  is  also  the  law  of  the 
domicil  of  the  mortgagor,  it  is  the  duty  of  this  Court  to 
give  full  effect  to  the  security,  without  reference  to  the 
usury  laws  of  England,  which  neither  party  intended  to 
evade  or  violate  by  the  execution  of  a  mortgage  upon 
the  lands  here."  ^ 

1  Chapman  u.  Robertson,  6  Taige,  R.  627,  630,  633. 


464  CONFLICT    OF   LAWS.  ["CH.  VIIL 

§  293  c.  Whatever  objections  may  be  made  to  the 
reasoning  of  the  learned  Chancellor,  and  it  is  certainly 
open  to  some  observation,  the  decision  itself  seems  well 
supported  in  point  of  principle  ;  for  the  parties  intended 
that  the  whole  transaction  should  be  in  fact,  as  it  was 
in  form,  a  New  York  contract,  governed  by  the  laws 
thereof,  and  the  repayment  of  the  debt  was  there  to  be 
made.  It  is  easily  reconcilable  with  other  laws  and 
principles,  if  viewed  in  this  light ;  if  viewed,  as  the 
Chancellor  interpreted  the  case,  it  is  perhaps  irrecon- 
cilable with  other  cases  and  with  general  principles.^ 


'  Chapman  v.  Robertson  6  Paige,  R.  627,  630  to  633.  It  appears  to 
me,  that  the  case  was  correctly  decided  ;  but  with  the  greatest  deference 
for  the  learned  Chancellor,  upon  principles  and  expositions,  to  which  I 
cannot  assent,  and  which  appear  to  me  inconsistent  with  the  general  rea-' 
soning  of  the  authorities.  It  appears  to  me,  that  there  being  no  place  of 
payment  designated  in  the  bond  and  mortgage,  which  was  executed  at 
New  York,  where  the  borrower  was  domiciled,  that,  although  it  was  not 
operative  until  received  by  the  lender,  yet  when  received  and  adopted  by 
him,  the  transaction  related  back  to  its  origin,  and  it  was  valid,  not  as  a 
bond  and  mortgage  executed  in  England  for  the  payment  of  money  there, 
but  as  a  bond  and  mortgage  for  the  payment  of  the  money  in  New  York, 
as  having  originated  there,  and  having  its  whole  validity  and  operation 
from  the  law  of  Nev^  York.  If  an  order  for  goods  were  sent  from  New  York 
to  England  ;  and  the  order  were  complied  with,  and  the  goods  received  in 
New  York  ;  after  the  receipt  of  the  goods  the  debt  would  be  treated  as  an 
English  debt,  since  the  contract  of  purchase  would  there  be  deemed  to  be 
negotiated  and  perfected.  Ante,  ^  285,286.  In  truth,  where  no  place  of 
payment  was  mentioned,  the  law  of  the  place,  where  the  contract  is  made, 
fixes  it  in  that  place,  wherever  the  parties  may  be  domiciled.  The  bond 
and  mortgage  took  effect,  as  contracts  of  the  borrower  executed  at  New 
York.  If  a  negotiable  note  is  made  in  one  State,  and  is  negotiated  to  an 
indorsee  in  another  Slate,  the  contract  with  the  indorsee  by  the  maker 
takes  effect  as  a  promise  in  the  State  where  the  note  was  made,  and  not 
where  it  was  indorsed.  The  payment  of  the  money  to  the  bankers  of  the 
borrower  in  London  was  merely  for  his  accommodation,  and  it  by  no 
means  made  the  money  repayable  there.  The  case  of  Stapleton  v.  Con- 
way, 3  Atk.  R.  727 ;  S.  C.  1  Ves.  is,  as  far  as  it  goes,  in  opposition  to 
the  decision  in  6  Paige,  R.  627.  It  is  not,  however,  my  design  in  this 
place  to  enter  upon  the  reasons  of  my  dissent  from  the  doctrines  stated  by 


CH.  VIII.]  FOREIGN   CONTRACTS.  465 

§  293  d.  John  Voet,  in  his  Commentaries  on  the  Pan- 
dects, holds  this  very  doctrine,  which  appears  to  me  to 
be  entirely  in  harmony  with  the  received  principles  of 
international  law.  He  considers,  that  the  interest  must 
be  according  to  the  law  of  the  place  where  the  contract 
is  to  be  performed,  whether  that  place  be  where  the 
contract  is  made,  or  it  be  another  place.  If  the  interest 
is  in  either  case  stipulated  for  beyond  that  rate  he 
deems  it  usurious.  >SV  alio  in  loco  gravioriim  iisnrarum 
stipiiiatio  permissa,  in  alio  vetita  sit,  lex  loci,  in  quo  contrac- 
tus celehratus  est,  spectanda  videtur  in  qiicestione,  an  mode- 
ratw,  an  vero  modum  cxccdentes,  usurce  ^er  conventionem 
constitute  sint.  Dummodo  mcminerhnus,  ilium  propyie  lo- 
cum coniractus  in  jure  non  intelUgi,  in  quo  negotium  gestum 
est,  sed  in  quo  pecuniam  ut  solveret,  se  quis  ohligavit.  3fodo 
etiam  bond  fide  omnia  gesta  fucrint,  nee  consulto  talis  ad 
miduum  contrahendiim  locus  elcctus  sit,  in  quo  graviores  usu- 
rce, quam  in  loco,  in  quo  alias  contrahendum  fidssct,  prohatw 
inveniuntur.  Etiamsi  de  codero  hypotheca,  in  sortis  et  usura- 
rum  securitatem  ohligata,  in  alio  hco  sita  sit,  ubi  solce  levi- 
ores  usurce  p)ermissco ;  cum  cvqidus  sit,  contractum  acccsso- 
rium  regi  ex  loco  pricipalis  negotii  gesti,  quam  ex  opposito 
contractum  pnncipalem  regi  lege  loci,  in  quo  aceessorius  con- 
tractus celebratus  est} 

S  293  e.  Burgundus  adopts  the  same  doctrine,  and 
says:  Licita  vero  sit,  an  illicita,  stiinilatio,  a  forma  quoque 
videtur  proficisci,  et  ideo  ejusdem  legihus  dirigitur,  qidbus 
ipsa  forma,  et  ad  locum  contractus  collimare,  oportet.     Quare 

the  learned  Chancellor  in  6  Paige,  R.  627.  The  principles  stated  from 
§  280  to  ^  321,  sufficiently  explain  some  of  the  grounds  upon  which  that 
dissent  may  be  maintained.  Sec  also  2  Kent,  Comm.  Lect.  39,  p.  460, 
461,  3d  edit.,  and  Andrews  v.  Pond,  13  Peters,  R.  65  ;  Ante,  §  291 ; 
Post,  §  304. 

1  J.  Voet,  ad  Pand.  Lib.  22,  tit.  1,  ^  6,  p.  938  ;  post,  ^  304. 


466  CONFLICT    OF   LAWS.  [CH.  VIII. 

etu  suf^ariim  modiis  is  comtituendiis  est,  qui  in  regione  in  qua 
est  contractum  legitime  celehratur.  Et  cum  reditus  duodena 
riiis,  in  Gallia  stijmlatiis,  in  controversiam  incidisset,patroci- 
nante  me  judicatum  est,  in  curia  Flandrice  valere  pactum : 
nee  ohesse,  quod  in  Flandria,  iihi  reditus  constitutus,  sive  Jiypo- 
thecce  impositus  proponerettir,  usiiras  semisse  graviores  sti- 
pulari  non  liceat ;  quia  ratio  hjpothecce  non  hahetur,  quce 
hac  in  re  nihil  conferens  ad  sidjstantiam  oUigationis,  tantiim 
extrinsecus  accedit  legitimce  stipidationi.  Sed  hoc  intellige 
de  usiiris  in  stipidationem  dediictis,  non  autem  de  iis,  quce 
ex  mora  dehentur,  in  quibus  ad  locum  solutionis  {ut  docebi- 
mus  postea)  respicere  oportct} 

§  294.  In  cases  of  express  contracts  for  interest  fo- 
reign jurists  generally  hold  the  same  doctrine.  Dumou- 
lin,  and  after  him  Boullenois,  says :  In  concernentihus  con- 
tractum,  et  emergcntihis  tempore  contractus  spectatiir  locus, 
in  cpio  contraUtur?  And  hence  the  latter  deduces  the 
general  conclusion,  that  the  validity  of  contracts  for 
rates  of  interest  depends  upon  the  laws  of  the  place 
where  the  contract  is  made  and  payable,  whether  it  be 
in  the  domicil  of  the  debtor,  or  in  that  of  the  creditor, 
or  in  that  where  the  property  hypothecated  is  situated, 
or  elsewhere.^  He  holds  this  also  to  be  a  just  inference 
from  the  language  of  the  Digest.  Cum  judicio  honm 
fidei  disceptatur,  arhitrio  judicis  tisurarum  modus  ex  more 
regionis,  ubi  contractum  est  constituitur ;  ■*  and  that  it  ap- 


1  Burgundus,  Tract.  4,  §  10,  p.  108,  109  ;  post,  ^  302. 

2  Molin,  Opera,  Comment,  ud.  Consult.  Paris,  tit.  1,  ^  12,  Gloss.  7,  n. 
37,  Tom.  1,  p.  224  ;  2  Boullenois,  Observ.  46,  p.  472  ;  Henry  on  Foreign 
Law,  p.  53  ;  Boullenois,  Quest,  de  la  Contr.  des  Lois,  p.  330  to  338  ; 
ante,  §  82  a. 

3  2  Boullenois,  Observ.  46,  p.  472. 

4  Dijr.  Lib.  22,  tit.  1, 1.  1. 


CH.  VIII.]  FOREIGN    CONTRACTS.  467 

plies,  where  the  parties  have  designedly  contracted  in 
the  one  place,  rather  than  in  the  other.  ^  But,  where 
there  is  no  express  contract,  and  interest  is  to  be  im- 
plied, foreign  jurists  are  not  so  well  agreed."  Some 
contend,  that,  if  the  contract  is  between  foreigners,  the 
law  of  interest  of  the  domicil  of  the  creditor  ought  to 
prevail;  and  others,  that  that  of  the  domicil  of  the 
debtor  ought  to  prevail.^ 

§  295.  Boullenois  is  of  opinion,  that,  where  there  is 
no  express  contract,  the  interest  for  which  a  delinquent 
debtor  is  tacitly  liable,  on  account  of  his  neglect  to  pay 
the  debt,  is  the  interest  allowed  by  the  law  of  the 
place  where  the  debt  is  payable ;  because  it  is  there 
that  the  interest  has  its  origin.^  And,  in  this,  he  fol- 
lows the  doctrine  of  Everhardus,  who  says :  Quia,  uli 
certus  locus  solutionis  faciendm  destinatiis  est,  tunc  non  facta 
solutione  in  termino  et  loco  prcefixo,  mora  clicitiir  contrahi  in 
loco  clcstinatce  solutionis,  non  in  loco  celehrati  contractus.^ 
Strykius  holds  the  same  opinion.  Si  lis  oritur  ex  post 
facto  propter  negligentiam  et  moram,  consideratur  locus,  ubi 
mora  contracta  est.^  Boullenois  puts  a  distinction,  which 
also  deserves  notice,  between  cases  where  the  debt  for 
money  loaned  is  payable  at  a  fixed  day,  and  where  no 
day  is  fixed  for  payment,  but  it  is  at  the  pleasure  of 
the  creditor  when  it  shall  be  paid,  and  no  place  of  pay- 


'  2  Boullenois,  Observ.  46,  p.  472. 

2  2  Boullenois,  Observ.  46,  p.  472,  477,  478,  479,  496. 

3  Id.;  Bouhier,  Cout.  de  Bourg.  ch.  21,  ^  194  to  i^  199;  Livermore, 
Dissert.  ^  42,  p.  46,  47.  • 

4  2  Boullenois,  Observ.  46,  p.  477. 

5  Everhard.  Consil.  78,  n.  10,  p.  205. 

6  2  Boullenois,  Observ,  46,  p.  477 ;  Henry  on  Foreign  Law,  p.  53.  — 
For  the  citation  from  Strykius  I  have  been  obliged  to  rely  on  Boullenois  ; 
as  I  have  not  been  able,  after  considerable  research  in  the  voluminous 
words  of  Strykius,  to  find  the  particular  passage. 


468  CONFLICT    OF   LAWS.  [CH.  VIIL 

ment  is  mentioned.^  In  the  former  case  he  holds,  that 
the  debtor  is  bound,  in  order  to  avoid  default,  to  seek 
the  creditor  and  pay  him ;  and  therefore  the  neglect  to 
make  payment  arises  in  the  domicil  of  the  creditor,  and 
interest  ought  to  be  allowed  according  to  the  law  of 
that  place.-  In  the  latter  case  the  creditor  is  to  demand 
payment  of  the  debtor ;  and  the  neglect  of  payment  is 
in  the  domicil  of  the  debtor,  and,  therefore,  interest 
ought  to  be  allowed  according  to  the  law  of  his  domi- 
cil.^ And  if,  between  the  time  of  contracting  the  debt 
and  the  demand  of  the  creditor,  the  debtor  has  changed 
his  domicil,  BouUenois  is  of  opinion  that,  if  the  demand 
is  in  the  new  domicil,  interest  for  neglect  of  payment 
should  be  according  to  the  law  of  the  latter  ;  especially 
if  the  change  of  domicil  is  known  to  the  creditor.*  And 
he  applies  the  same  rule  to  a  case  where,  by  the  law 
of  the  old  domicil,  a  simple  demand  only  is  required, 
and,  by  the  law  of  the  new  domicil,  a  demand  by  judi- 
cial process  is  necessary.^  The  distinction  does  not 
appear  to  have  any  foundation  in  our  jurisprudence ; 
for,  whether  the  debt  be  payable  at  a  fixed  day,  or 
upon  a  demand  of  the  creditor,  if  no  place  of  payment 
is  prescribed,  the  contract  takes  effect  as  a  contract  of 
the  place  where  it  is  made ;  and  being  payable  gene- 
rally, it  is  payable  everywhere,  and  after  a  demand  and 
refusal  of  payment,  interest  will  be  allowed  according 
to  the  law  of  the  place  of  the  contract.^ 

§  296.  It  may,  therefore,  be  laid  down  as  a  general 
rule,  that,  by  the  common  law,  the  Lex  loci  contractus 
will,  in  all  cases,  govern  as  to  the  rule  of  interest,  fol- 


1  2  Boullenois,  Observ,  16,  p.  477,  478. 

2  Ibid.  3  Ibid.  4  Ibid.  6  Id.  p.  477  to  p.  479. 
e  Ante,  ^  272,  ^  278  a ;  post,  ^  317,  ^  329. 


CH.  VIII.]  FOREIGN   CONTRACTS.  469 

lowing  out  the  doctrine  of  the  civil  law  already  cited  ; 
Cumjudicio  honcefidei  desceptcdur,  arUtrio  judicis  imirarum 
modus,  ex  more  regionis,  xibi  contractum,  constitiiUur  ;  ita 
iamen  id  Icgi  non  of  ended}  But  if  the  place  of  payment 
or  of  performance  is  different  from  that  of  the  contract, 
then  the  interest  may  be  validly  contracted  for  at  any 
rate  not  exceeding  that  which  is  allowed  in  the  place  of 
payment  or  performance.  And  in  the  absence  of  any 
express  contract  as  to  interest,  the  law  of  the  same 
place  will  silently  furnish  the  rule,  where  interest  is  to 
be  implied  or  allowed  for  delay  [ex  mora)  of  payment,  or 
performance.^ 

§  297.  But,  clear  as  the  general  rule,  as  to  interest, 
is,  there  are  cases,  in  which  its  application  has  been 
found  not  without  embarrassments.  Thus,  where  a 
consignor  in  China  consigned  goods  for  sale  in  New 
York,  and  delivered  them  to  the  agent  of  the  consignee 
in  China,  and  the  proceeds  were  to  be  remitted  to  the 
consignor  in  China,  and  there  was  a  failure  to  remit, 
the  question  arose,  whether  interest  was  to  be  com- 
puted according  to  the  rate  in  China,  or  the  rate  in 
New  York.  Mr.  Chancellor  Kent  held,  that  it  should 
be  according  to  the  rate  in  China.  But  the  Appellate 
Court  reversed  his  decree,  and  decided  in  favor  of  the 


1  Dig.  Lib.  22,  tit.  1,  1.  1 ;  Id.  1.  37 ;  ante,  ^  294;  1  Eq.  Abr.  Interest, 
E.  ;  Champant  v.  Ranelagh,  Prec.  Ch.  128;  De  Sobry  v.  De  Laistre, 
2  Harr.  &  John.  R.  193,  228.  See  1  Burge,  Comment,  on  Col.  and  For. 
Law,  Pt.  1,  ch.  l,p.  29,  30. 

2  Ante,  ^  291 ;  2  Kent,  Comm.  Lect.  32,  p.  460,  461,  3d  edit. ;  Robin- 
son V.  Bland,  2  Burr.  R.  1077  ;  "Ekins  v.  East  India  Company,  1  P.  W. 
396  ;  Royce  v.  Edwards,  4  Peters,  R.  Ill  ;  2  Fonbl.  Eq.  B.  5,  ch.  1, 
§  6;  Fanning  v.  Consequa,  17  Johns.  R.  511  ;  De  Sobry  v.  De  Laistre, 
2  Harr.  &  Johns.  R.  193,  228 ;  Smith  v.  Mead,  3  Connect.  R.  253 ;  Win- 
throp  V.  Carlton,  12  Mass.  R.  4 ;  Foden  v.  Sharp,  4  Johns.  R.  183 ; 
Henry  on  Foreign  Law,  p.  53. 

CONFL.  40 


470  CONFLICT    OF   LAWS.  [CH.    VIIL 

rate  in  New  York.  Each  Court  admitted  the  general 
rule,  that  the  interest  should  be  according  to  the  law  of 
the  place  of  performance,  where  no  express  interest  is 
stipulated.  But  the  Court  of  Chancery  thought,  that 
the  delivery  of  the  goods  being  in  China,  and  the  remit- 
tance being  to  be  made  there,  the  contract  was  not 
complete,  until  the  remittance  arrived,  and  was  paid 
there.  The  Appellate  Court  thought,  that  the  delivery 
of  the  goods  in  China,  to  be  sold  at  New  York,  was  not 
distinguishable  in  principle  from  a  delivery  at  New 
York ;  and,  that  the  remittance  would  be  complete,  in 
the  sense  of  the  contract,  the  moment  the  money  was 
put  on  board  the  proper  conveyance  in  New  York  for 
China;  and  it  was  then  at  the  risk  of  the  consignor. 
The  duty  of  remittance  was  to  be  performed  in  New 
York,  and  the  failure  was  there ;  and  consequently  the 
rate  of  interest  of  New  York  only  was  due.^ 

§  298.  Another  case  has  arisen  of  a  very  different 
character.  The  circumstances  of  the  case  were  somewhat 
complicated  ;  but  the  only  point  for  consideration  there 
arose  upon  a  note,  of  which  the  defendants  were  the 
indorsers,  and  with  the  amount  thereof  thev  had  debited 
themselves  in  an  account  with  the  plaintiff;  and  which 
they  sought  now  to  avoid  upon  the  ground  of  usury. 
The  note  was  given  in  New  Orleans,  payable  in  New 
York,  for  a  large  sum  of  money,  bearing  an  interest  of 
ten  per  cent.,  being  the  legal  interest  of  Louisiana,  the 
New  York  legal  interest  being  seven  per  cent.  only. 
The  question  was,  whether  the  note  was  tainted  with 
usury,  and  therefore  void,  as  it  would  be  if  made  in 


1  Consequa  v.  Fanning,  3  Johns.  Ch.  R.  587,  GIO;  S.  C.  17  Johns.  R. 
511,  520,  521.  See  Grant  v.  Ilealey,  2  Chand.Law  Reporter,  113 ;  S.  C. 
3  Sumner,  R.  523 ;  ante,  i^  284  a. 


CH.  VIII.]  FOREIGN   CONTRACTS.  471 

New  York.  The  Supreme  Court  of  Louisiana  decided, 
that  it  was  not  usurious ;  and  that,  although  the  note 
was  made  payable  at  New  York,  yet  the  interest  might 
be  stipulated  for,  either  according  to  the  law  of  Louisi- 
ana, or  according  to  that  of  New  York.  The  Court 
seems  to  have  founded  their  judgment  upon  the  ground, 
that  in  the  sense  of  the  general  rule,  already  stated,^ 
there  are,  or  there  may  be,  two  places  of  contract ;  that, 
in  which  the  contract  is  actually  made  j  and  that,  in 
which  it,is  to  be  paid  or  performed;  Locus,  vhi contrac- 
tus celehratiis  est;  locus,  ubi  destinata  solutio  est;  and, 
therefore,  that  if  the  law  of  both  places  is  not  violated, 
in  respect  to  the  rate  of  interest,  the  contract  for  inte- 
rest will  be  valid.^  In  support  of  their  decision  the 
Court  mainly  relied  upon  the  doctrines,  supposed  to  be 
maintained  by  certain  learned  jurists  of  continental 
Europe,  whose  language,  however,  does  not  appear  to 
me  to  justify  any  such  interpretation,  when  properly 
considered,  and  is  perfectly  compatible  with  the  ordi- 
nary rule,  that  the  interest  must  be,  or  ought  to  be, 
according  to  the  law  of  the  place  where  the  contract  is 
to  be  performed,  and  the  money  is  to  be  paid.  It  may 
not  be  without  use  to  review  some  of  the  more  import- 
ant authorities  thus  cited,  although  it  must  necessarily 
involve  the  repetition  of  some,  which  have  been  already 
cited. 

§  299.  There  is  no  doubt,  that  the  phrase  Lex  loci  con- 
tractus may  have  a  double  meaning  or  aspect ;  and,  that 


1  Ante,  ^  280. 

2  Depauu.  Humphreys,  20  Martin,  R.  1.  —  Mr.  Chancellor  Walworth, 
in  Chapman  v.  Robertson,  6  Paige,  R.  627,  634,  has  expressed  his  entire 
concurrence  in  the  decision  in  20  Martin,  R.  1.  And  see  Canegie  v. 
Morrison,  2  Mete.  381.  But  see  Van  Schaike  v.  Edwards,  2  Johns.  Ch. 
Cas.  355. 


472  CONFLICT    OF   LAWS.  [CH.  VIE. 

it  may  indifferently  indicate  the  place,  where  the  con- 
tract is  actually  made,  or  that,  where  it  is  virtually 
made  according  to  the  intent  of  the  parties,  that  is,  the 
place  of  payment  or  performance.*  We  have  seen,  that 
the  rule  of  the  civil  law  clearly  indicates  this.  Con- 
tradum  aiitem  non  idiqiie  co  loco  intelUgitiir,  quo  negotiiim 
gestum  sit ;  sed  quo  solvenda  est  pecunia.^  Many  distin- 
guished jurists  refer  to  this  distinction.  Huberus,  in 
the  passage  already  cited,  says  ;  Verum  tamcn  non  ita 
iw(2cise  resjnciendus  est  locus,  in  quo  contractus  es^  initus,  ut 
si  p)cirtes  alium  in  contrahendo  locum  reSpexerint,  ille  nonpo- 
iius  sit  consider andus?  Everhardus  (as  we  have  seen) 
says  ;  Uhi  certus  locus  solutioni  faciendce  destincdus  est,  tunc 
non  facta  solidione  in  termino  et  loco  pnefixo  mora  dicitur 
contraU  in  hco  destinatce  solutionis,  et  non  in  loco  celebrati 
contractus.  Nimirum,  ergo,  si  inspiciatur  valor  rei  debitoe 
secundum  locum,  id)i  destinata  est  solutio.  Turn  etiam,  quia 
locus  cont?^actus,  conventio,  sive  oUigatio,  perficitur,  scu  verha 
proferurdw.  Secundo,  uM  solutio  sen  deliheratio  destinatur} 
And  he  adds:  Qida  dico,id  supra  dixi  ;  quod  locus  contractus 
dicitur  duolusmodis  ; p>rimo,id)i contractus  celehratus est ;  se- 
cundo,  uhi  solutio  destinata  est.^  And  again ;  Duplex  est  locus 
contractus,  id  supra  dixi,  quo  casu  in  tantum  censetur  con- 
tractus celehratus  in  loco  destinatce  solidionis,  quod  nidlo  modo 
censetur  celehratus  in  loco,  uhi  verha  fuerimt  prolata,  quoad 
ca,  qiue  veniunt  post  contractum  in  esse  productumJ'  Paul 
Voet  places  it  in  a  strong  light.     JVe  tamen  hie  oriatur 


1  2  Boullenois,  Observ,  4G,  446  ;  ante,  <^  235. 

2  Dig.  Lib.  42,  tit.  .5,  1.  3  ;  Polhier,  Pand.  Lib.  42,  tit.  5,  n.  24  ;  ante, 
§  280. 

3  Ante,  ^  239,  ^  281  ;  Huber.  Lib.  1,  tit.  3,  ^  10. 

4  Everhard.  Consil.  78,  n.  10,  11,  p.  205  ;  ante,  ^  295. 

5  Everhard.  Consil.  78,  n.  18. 
G  Id.  n.  17  ;  Id.  n.  20. 


CH.  VIII.]  FOREIGN   CONTRACTS.  473 

confusio,  locum  contractus  duplicemfacio  ;  aliiim,  uU  fit,  de 
quo  jam  dictum;  aliiim,  in  quern  destinata  solutio.  Illiid  lo- 
cum verum,  Jiunc  fictiim  appcUat  Salicetus}  Uterque  tamen 
rectc  locus  dicitur  contnictus,  ctiam  secundum  leges  civiles, 
licet  postr emus  aliquid  fictionis  coniineat!^ 

§  299  a.  But  for  what  purpose  do  these  foreign  ju- 
rists refer  to  the  distinction  ?  Is  it,  that  the  validity  of 
the  same  contract  is  to  be  at  the  same  time  ascertained  in 
part  by  the  law  of  one  country,  and  in  part  by  that  of 
another?  By  no  means.  They  nowhere  assert,  that 
the  validity  of  the  dontract  is  not  to  be  judged  of 
throughout  by  one  and  the  same  law,  that  is,  by  the 
law  of  the  place,  where  it  is  made,  or  by  the  law  of  the 
place,  where  it  is  to  be  performed,  according  as,  in  a 
just  sense,  with  reference  to  the  nature  and  objects  of 
the  particular  contract,  the  one  or  the  other  is  properly 
to  be  deemed  the  place  of  the  contract.  They  no- 
where assert,  that  one  and  the  same  rule  is  not  to  apply 
throughout  to  all  the  stipulations  in  the  contract.  That 
the  contract  is  good,  notwithstanding  it  does  not  conform 
either  to  the  law  of  the  place,  where  it  is  made,  or  to 
that,  where  it  is  to  be  performed.  That  the  contract  is 
to  be  treated,  not  as  a  whole ;  but  is  to  be  distributed 
into  parts ;  so  that,  if  in  some  of  the  stipulations  it  vio- 
lates the  law  of  each  place,  it  shall  still  be  good  through- 
out, if  it  does  not  violate  in  the  whole  the  law  of  both 
places.  In  many  of  the  passages  cited  in  support  of 
the  supposed  mixed  character,  and  mixed  interpretation, 
and  mixed  operation  of  the  contract,  these  learned  ju- 


1  Lib.  1,  Cod.  tit.  1,  Summ.  Trinit.  n.  4. 

2  Voet,  De  Stat.  ^  9,  ch.  2,  ^  11,  p.  270,  edit.  1715  ;  Id.  p.  326,  edit. 
1661.  See  also  2  BouUenois,  Observ.  46,  p.  488  ;  Boullenois,  Quest,  sur. 
Contr.  des  Lois,  p.  330  to  p.  338. 

40* 


474  CONFLICT    OF   LAWS.  [CH.  VIII. 

lists  were  considering  questions  of  a  very  diflerent  na- 
ture. Some  of  them  were  considering  tlie  question  as  to 
the  rule,  which  is  to  govern  generally  in  regard  to  the 
formalities,  solemnities,  and  modes  of  execution  of  con- 
tracts, where  the  place  of  execution  is  the  same  place, 
where  it  is  made;  others  again  were  considering  the 
rule,  as  to  the  interpretation  and  extent  of  the  obliga- 
tion of  contracts  generally,  under  the  like  circumstances; 
and  others  again  were  considering  the  rule,  where  the 
contract  is  made  in  one  place,  and  is  to  be  executed  in 
another.  We  are  therefore  to  understand  their  language 
according  to  the  particular  occasion,  and  the  particular 
circumstances,  to  which  it  is  applied. 

§  300.  Let  us  examine  then  the  particular  language, 
which  is  used  by  these  jurists,  in  the  passages  cited. 
Thus  Alexander  is  said  to  use  the  following  passage.^ 
In  scriptura  instrumenti,  in  ceremomis,  et  solemnitatibus,  et 
generaliter  in  omnibus,  qiice  adformam  et  perfectionem  con- 
tractus pertinent,  spectanda  est  consiietiido  regionis,  vhi  fit 
negotium.  Debet  enim  servari  statiitum  loci  contractus, 
cpioad  Jiccc,  qnce  oriuntur  secundum  naturam  ipsius  contractus. 
This  language  expresses  only  a  general  truth,  and  we 
have  no  means  of  knowino;  that  the  author  intended  to 


1  I  cite  the  passage  from  Alexander,  (Consil.  37,)  as  I  find  it  in  20  Mar- 
tin, R.  22,  23,  not  having  been  able  to  obtain  the  works  of  Alexander. 
But  I  have  some  doubt,  whether  the  first  part  of  the  passage  is  not  copied 
by  mistake  from  Burgundus,  who  uses  almost  the  identical  language. 
Burgundus,  Tract.  4,  n.  7,  p.  104  ;  Post,  ^  300  a.  I  now  suspect  that 
the  citation  is  not  (as  I  supposed  it  was)  from  Alexander  al  Alexandro, 
but  by  a  mistake  of  the  Court  in  20  Martin,  R.  22,  23,  (probably  taking 
it  at  second  hand  from  some  other  author,)  from  Alexander  Tartagni  Imo- 
lens  (or  De  Imola)  who  wrote  a  large  work  in  5  and  7  vols,  folio,  of  Con- 
silia,  published  Mediol.  1488,  1489.  Lipenius  in  his  Bibl.  Jurrd.  vol.  1, 
p.  333,  refers  to  this  work.  1842.  Everhardus  in  his  Consil.  78,  in  seve- 
ral seclians  refers  to  Alex,  de  Imola,  Consil.  37,  and  Consil.  49. 


CH.  VIII.]  FOREIGN   CONTEACTS.  475 

speak  here  of  any  thing  further  than  the  general  rule, 
applicable  to  all  contracts  made  and  to  be  performed  in 
the  same  place.^ 

§  300  rt.  Burgundus  says ;  Et  qiddcm  in  scriptura  instru- 
menti,  in  solemnitaiibus,  et  cercmoniis,  et  generaliter  in  omnir 
his,  quce  adformam  ej  usque  perfectionem  pertinent,  spectanda 
est  eonsuetudo  regionis,  iibi  fit  negotiatio.  Rationem  assignant 
Doctores  quod  eonsuetudo  influat  in  eontractus,  et  convenir 
cities  ad  eiim  respicere,  ac  mlmitaicm  siiam  accommodare 
videantur.  Et  rccte?  Now  we  know  upon  what  occa- 
sion this  language  was  used.  Burgundus  was  here 
considering  the  question  solely  with  reference  to  the 
point,  when  a  contract  is  to  be  deemed  lawful,  or  not ; 
or  in  other  words,  by  what  law  its  validity  is  to  be  go- 
verned, lllicita  stipulatio  est,  (says  he,)  quce  legihus  est 
interdida,  utputa,  si  deUtum  modum  usurarum  excedat.  Nunc 
ergo  considerandum,  ciijus  loci  ratio  haberi  deJ)eat?  He  does 
not  even  allude  to  a  case,  where  the  contract  is  made 
in  one  place,  and  is  to  be  performed  in  another  place. 
He  adds  ;  Igitiir,  id  paiicis  ahsolvam,  quoties  de  vincido  oUi- 
gationis,  vel  de  ejus  interpretatione  qucvritur,  veluti,  qiios  ct 
in  quantum  ohliget,  quid  sententiw,  stijmlationis  inesse,  quid 
ahesse  credi  oporteat ;  item  in  omnihus  actionihus,  et  amhi- 
giiitatihus,  qum  inde  oriuntur,  primum  qiddem  id  sequcmur, 
quod  inter  partes  actum  crit,  ant  si  non  apparet,  quid  actum 
est,  erit  consequens,  id  id  sequamur,  cpuod  in  regione,  in  qua 
actum  est,frequentatur.^     And  he  concludes  by  saying ; 

1  From  other  passages  cited  by  Everhardus  from  Alexander  de  Imola, 
and  Bartolus,  and  Baldus,  it  seems  clear,  that  they  all  consider  the  locus 
solutionis  to  be  the  proper  locus  contractus,  except  so  far  as  regards  the 
solemnities  and  creation  of  the  contract.  (Solemnitatem  et  subsistentiam 
contractus.)     See  Everhard.  Consil.  78,  n.  20,  p.  207  ;  Id.  n.  24,  p.  208. 

2  Burgundus,  Tract.  4,  n.  7,  p.  104  ;  ante,  ^  260. 

3  Id.  n.  6,  p.  104. 

4  Burgundus,  Tract.  4,  n.  7,  p.  105. 


476  CONFLICT    OF   LAWS.  [CH.   VIII. 

Doctores  toties  ingermit  ea,  quw  i^espiciiint  solemnitatem  ac- 
tus, vel  quce  tempore  coiztractiis  ex  natiira  ipsius  adhibentur, 
onimturqiie,  ex  more  regionis,  uhi  contr actum  est,  legem  ac- 
cipere.  Ea  vera,  qiice  ad  complementum  vel  executionem 
contractus  spectant  vel  ahsoluto  eo  sitpervenmnt,  solere  a 
statiito  loci  dirigi,  in  quo  peragenda  est  solidio} 

S  300  l.  Everhardus  says  ;  Quod  quo  ad perfectionem 
contractus  seu  ad  solemnitatem  ad  esse  sen  suhstantiam  ejus  re- 
qidsitam  semper  inspicitur  statidum  seu  consuetudo  loci  cele- 
hrati  contractus.  Et  est  ratio,  quia  ex  quo  agitur  de  con- 
suetudine  contrahendi  non  mirum,  si  inspiciatur  locus  initce 
conventionis,  uhi  contractus  accejnt  perfectionem.^  But  he 
immediately  adds  ;  Sed  uhi  agitur  de  consuetudine  solven- 
di,  id  in  casu  ])r^senti,  (that  is,  where  a  contract,  made 
in  one  place,  was  payable  in  another,)  vel  de  his,  quce 
veniunt  imp>lcnda  diu  post  contractum,  et  in  alio  loco  iniple- 
tioni  destinato,  tunc  inspicitur  locus  destinatce  solutionis. 
Now,  this  latter  passage  would  seem  as  strictly  to  ap- 
ply to  the  case  of  payment  of  interest,  as  to  the  case  of 
payment  of  principal.  If  the  parties  have  not  stipu- 
lated for  a  particular  rate  of  interest,  the  usage  of  the 
place  of  payment  ought  constantly  to  govern.  If  they 
have  stipulated  for  a  particular  rate  of  interest,  incon- 
sistent with  that  of  the  Lex  loci  solutionis,  the  question 
will  still  remain,  whether  it  can  lawfully  be  done.  Ev- 
erhardus has  not  here  discussed  it  -,  far  less  has  he  de- 
cided it.  And  he  cites  Baldus  in  support  of  his  opi- 
nion, as  saying ;  Quod  in  cxpeditivis  contractus  non  inspi- 
ciuntur  ordincdivi  contractus,  sed  locus  solutionis.^     He  af- 


1  Id.  n.  29,  p.  116.     See  also  Id.  n.  10,  p.  109 ;  ante,  §  292  a,  §  293  e.  i 

2  Everhard.  Consil.  78,  n.  11,  p.  206  ;  Id.  n.  18,  p.  207 ;  Id.  n.  27,  p.  209.  ' 

3  Everhard.  Consil.  78,  n.  11,  p.  206  ;  Id.  n.  17,  p.  207;  Id.  n.  27,  p. 
209. 


CH.  viil]  foreign  contracts.  477 

terwards  adds,  that  this  rule,  in  regard  to  the  forms  and 
solemnities,  required  in  order  to  create  and  perfect  any 
contract,  equally  applies  to  cases,  where  the  perform- 
ance is  to  be  in  the  same  place,  and  where  it  is  to  be 
in  another  place.  Uhi  vera  m  wio  loco  cclchmtus  est  coiir 
tradus,  ct  in  alio  loco  destinata  est  solidio,  tunc  quoad  ca, 
qiice  concermint  solemnitatem  actus,  item  ad  esse  et  perfec- 
tionem  contractus,  inspicitur  consuctudo  loci  celebrati  contrac' 
tus,  TJnde  si  ex  statuto  loci  contractus  reqidratur  certa  so- 
leuinitas  in  ipso  contractu,  &c.,  tale  statutum  vel  consuetudo 
del^et  ohservari,  licet  in  loco  destinatw  solutionis  non  sit  si^ 
mile  statutum}  How  far  this  latter  doctrine  is  correct 
and  maintainable,  as  a  general  rule,  we  have  already 
had  occasion,  in  some  measure,  to  consider.^  It  is  not 
material  to  the  present  discussion,  which  turns  upon 
another  point,  that  is,  whether  the  validity  of  a  contract 
may  depend  partly  upon  the  law  of  one  place,  and 
partly  on  the  law  of  another  place,  some  of  its  stipula- 
tions being  contrary  to  the  law  of  each  place. 

§  300  c.  Christinseus  expressly  professes  to  follow  the 
doctrine  of  Everhardus  on  this  subject.  Consuetudo  loci, 
(says  he,)  uhi  contraJdtur  spectanda  est,  scilicet  quoad  ohser- 
vantiam  solemnitatum  ipsius  actus.  Generaliter  enim  in  om- 
nibus, quce  adformam  ej usque  perfectionem  pertinent,  spec- 
tanda est  consuetudo  regionis  uhi  fit  negotiatio,  quia  consue- 
tudo infiuit  in  contractus,  et  videtur  ad  eos  respicere,  et  vo- 
luntatem  suam  eis  accommodare.  Idquh  recti.  Conditio 
quoque  loci  et  temporis  perfectionem  formce  etiam  respicit,  ct 
idcirco  a  regione  contractus  vicissim  diriguntur.^  He  adds ; 
Sed  quoad  ejus  executionem,  utpote  quoad  solutionem  facien- 


1  Id.  n.  18,  p.  207. 

2  Ante,  ^  280. 

3  Christin.  Decis.  283,  Vol.  1,  n.  1,  4,  5,  9,  10,  11,  p.  255. 


478  CONFLICT    OF   LAWS.  [CH.    VIII. 

danif  inspicienda  venit  consuetudo  destinatce  solutionis}  And 
again ;  Quoad  ea,  quae  celebrato  contractu  veniimt  facienda, 
impicitur  consuetudo  loci,  iibi  ea  dehent  fieri,  puta,  tradi, 
solvit 

§  300  d.  Gregorio  Lopez  states  only  the  general  doc- 
trine. Quando  contractus  celebratur  in  uno  loco,  puta  in 
Hispali,  et  destinata  solutio  in  Cordiibce  ;  tunc  non  inspicitur 
locus  contractus,  sed  locus  destinatce  solutionis  ;  ut  hahetur 
in  ista  Lege  ff.  I.  contraxisse?  Dumoulin  (Molinseus) 
says  ;  In  concernentiI)us  contractum,  et  emergentihus  tempoH 
contractus,  spectatur  locus,  in  quo  contraUtur,  et  in  concer- 
neniibus  meram  solemnitatem,  cujus  actus,  locus,  in  cpio  ille 
actus  celebratur}  In  another  place  he  says  ;  Aut  statu- 
turn  loquitur  de  his,  quce  concernunt  nudam  ordinationem  et 
solemnitatem  actus  ;  et  semper  inspicitur  statutum  vel  consue- 
tudo loci,  tibi  actus  celebratur,  sive  in  contractibus,  sive  in 
jiidiciis,  sive  in  testamentis,  sive  in  instrumentis  aut  aliis  con- 
ficiendis.  Aut  statutum  loquitur  de  his,  quce  meritum  scilicet 
causce,  vel  decisionem  concernunt ;  et  tunc,  aut  in  his,  quce 
pendent  a  voluntate  partium,  vel  per  eas  immutaii  possunt, 
et  tunc  insjnciuntur  circwnstantice,  voluntatis,  quarum  una 
est  statutum  hci,  in  quo  contraUtur  ;  et  domicilii  contrahen- 
tium  antiqui  vel  recentis,  et  similes  circumstantiw.^  In  an- 
other passage  he  finds  fault  with  those  who  exclusively 
look  to  the  place  where  the  contract  is  made  in  all  cases. 
Quia  putant  nuditcr  ct  indistincte  quod  debeat  ibi  hispid  lo- 
cus et  consuetudo,  uU  fit  contractus,  et  sic  jus  in  loco  con- 


1  Id.  n.  8,  9,  p.  355. 

2  Id.  n.  10,  II,  p.  355. 

3  20  Martin,  R.  9,  17 ;  ante,  ^  233  ;  Dig.  Lib.  44,  tit.  7,  1.  21. 

4  Dumoulin,  cited  in  20  Martin,  R.  24  ;  Molin.  Coram,  ad  Consuet. 
Paris,  tit.  1,  ^  12,  gloss.  7,  n.  37,  Tom.  1,  p.  224,  edit.  1681 ;  2  Boulle- 
nois,  Observ.  46,  p.  472. 

5  Molinaeus,  Coram,  in  Cod.  Lib.  1,  tit.  1,  Tom.  3,  p.  554,  edit.  1681. 


CH.  VIII.]  FOREIGN   CONTRACTS.  479 

tractus}  Quod  est  falsum  ;  quinimo  jus  est  it  taeita  et 
verisimiUter  mente  contrahentium.  He  adds;  Quia  qids 
ccnsctw  jwfius  contrahcre  in  loco,  in  quo  debet  solvere,  quam 
in  toco,  iiU  fortidto  tmnsicns  contmxit?  It  is  plain,  that 
these  passages  do  not  justify  the  inference  sought  to  be 
adduced  from  them.  They  import  no  more,  than  that 
the  law,  which  is  to  govern  contracts,  is  not,  in  all  cases, 
to  be  exclusively  the  law  of  the  place,  where  they  are 
made. 

§  300  e.  Boullenois  is  also  relied  on  in  support  of  the 
doctrine.  In  one  of  the  passages  cited  he  says  ;  When 
the  question  is,  whether,  in  contracts  upon  any  subject, 
the  rights  which  spring  from  the  nature  and  time  of  the 
contract,  {iicdura  et  temjjore  contractus,)  are  lawful  or  not, 
it  is  necessary  to  follow  the  law  of  the  place,  where  the 
contract  is  made.^  And  in  another  passage,  he  says ; 
When  the  question  is,  to  determine  the  lawfulness  of  a 
rate  of  rent,  or  annuity,  (taux  de  rentes^  and  in  the 
place  where  the  contract  is  made,  the  rate  is  different 
from  that,  which  is  to  be  paid,  either  in  the  country  of 
the  domicil  of  the  debtor,  or  in  that  of  the  domicil  of 
the  creditor ;  or  finally,  in  the  place  where  the  property 
hypothecated  is  situated ;  the  rate  will  be  adjudged 
lawful,  if  it  conforms  to  the  law  of  the  place,  where  the 
contract  is  made."*  The  context  shows  that  Boullenois 
was  only  contemplating  the  case,  where  the  contract 
was  made  in  the  place  of  its  intended  performance.  For 
he  adds ;  This  is  the  provision  of  the  law  of  the  Digest 
(De  Usuris,)  where  it  is  declared ;   Cum  judicio  home 


1  Ibid. 

2  Ibid. 

3  2  Boullenois,  Observ.  46,  p.  472. 
■•  2  Boullenois,  Observ,  46,  p.  472. 


480  CONFLICT   OF   LAWS.  [CH.  VIIL 

fidd  disceptatur,  arlitrio  jiidicis  usiiranim  modus  ex  more 
regionis,  uU  contractum  est,  consiituUiir  ;  ita  tamen,  ut  legi 
non  offendat ; '  and  I  believe  it  takes  place  whenever 
the  parties  designedly  contract  in  one  place,  rather  than 
another.^  The  true  meaning  of  Boullenois,  in  this  cita- 
tion, may  be  gathered  from  his  own  interpretation  of 
the  law  of  the  Digest  in  another  page,  where  he  cites, 
with  approbation,  the  opinion  of  Gothofredus,  that  the 
words  "  TJU  contractum  "  ought  to  be  understood  to  mean 
the  place  where  the  payment  ought  to  be  made.^  Hoec 
verla,  '^  Tfbi  contractum  est"  sic  intellige,  id)i  actum  est,  id 
solveret} 

§  301.  Bartolus  has  discussed  the  question  somewhat 
at  large,  how  far  the  law  of  the  place  of  the  contract 
is  obligatory  upon  foreigners,  and  what  effects  the  laws 
of  the  place  of  the  contract  have  beyond  the  territory. 
And  first,  (he  says,)  let  us  suppose  a  contract  made  by 
a  foreigner  in  one  place,  and  afterwards  a  suit  is  liti- 
gated thereon  in  another  place,  that  of  the  origin  of  the 
contracting  party ;  of  which  place  ought  the  laws  to 
be  observed  and  followed  in  deciding  it  ?  He  says,  we 
should  make  a  distinction.  Either  we  speak  of  the 
statute  or  custom  which  respects  the  solemnities  of  the 
contract,  or  of  the  process  and  proceedings  in  the  suit, 
or  of  those  things  which  appertain  to  the  jurisdiction 
in  the  execution  of  the  contract.  In  the  first  case,  we 
are  to  look  to  the  law  of  the  place  of  the  contract ;  in 
the  second  case,  (as  to  the  process  and  proceedings  in 


1  Dig.  Lib.  22,  tit.  1,  1.  1  ;  Pothier,  Pand.  Lib.  22,  tit.  1,  n.  52  ;  ante, 
§296. 

2  2  BouUenois,  Observ.  46,  p.  472  ;  Id.  p.  446. 

3  Id.  p.  446. 

4  Golhofred.  n.  10,  ad  Dig.  Lib.  22,  tit.  1,  1.  L 


CH.  VIIT.]  FOREIGN   CONTRACTS.  481 

the  suit,)  to  the  place  of  the  judgment.^  Or  else,  we 
speak  respecting  those  things  which  belong  to  the  de- 
cision of  the  cause ;  and  then  the  question  is  as  to 
those  things  which  arise  from  the  very  nature  of  the 
contract  itself  in  its  origin,  or  as  to  those  things,  which 
arise  afterwards  on  account  of  negligence  or  delay. 
In  the  first  case,  the  law  of  the  place  of  the  contract  is 
to  be  looked  to,  that  is,  the  place  where  the  contract  is 
made,  and  not  where  it  is  performed.  In  the  second 
case,  either  the  payment  is  to  be  made  in  a  fixed  place, 
or  alternately  in  several  places,  so  that  the  plaintiff  has 
his  election ;  or  it  is  to  be  made  in  no  particular  place, 
because  the  promise  is  simply  made.  In  the  first  case, 
the  custom  of  the  place  is  to  be  looked  to,  in  which 
the  payment  is  to  be  made.  In  the  second  and  third 
cases,  the  place  is  to  be  looked  to,  where  the  suit  is 
brought.  His  language  is ;  Et  primo,  utrum  statidum 
iwrrigcdur  extra  territormn  ad  non  subditos  ;  secimdo, 
utnmi  effectm  statuti  porrigatur  extra  territorium  statuenti- 
um.  Et  primo,  qiiwro,  quod  de  contractihiis.  Pone  con- 
tractum  celehratmn  per  aUqiiem  forensem  in  hac  civitate ; 
litigium  ortum  est,  et  agitatur  lis  in  loco  originis  contrahen- 
tis,  cujus  loci  statuta  dchent  scrvari  et  spectan.  Distingue. 
Ant  loquinutr  de statuto,  aut  de  consuetiidine,quw  respiciunt  ip- 
sius  contractus  solemnitatem,  aut  litis  ordinationein,  aut  de  his, 
quce  pertinent  ad  jurisdictionem  ex  ipso  contractu  evenientis 
execiitionis.  Primo  casu,  inspicitur  locus  contractus.  JSe- 
cundo  casu,  aut  quceris  de  Ms,  qum  pertinent  ad  litis  ordincu- 
tionem,  aut  de  his,  quce  pertinent  ad  litis  ordinationeni  ;  et 
inspicitur  locus  judicii.     Aut  de  his,  qiice  fjertincnt  ad  ipsi- 


^  Everhardus  manifestly  understands  Bartolus  to  speak  with  reference 
to  contracts,  where  payment  is  to  be  made  in  loco  celebrati  contractus. 
Everhard.  Consil.  78,  n.  2G,  27,  p.  208. 
CONFL.  41 


482  CONFLICT    OF   LAWS.  [CH.  VIIL 

lis  litis  decisionem  ;  et  tunc,  aid  de  his,  quw  oniintur  secun- 
dum ijpsius  contractus  naturam  tempore  contractus,  aid  de 
his,  quce  oriuntur  ex  post  facto  pro'ptcr  negligentiam,vel  mo- 
ram.  Primo  casii,  rnspicitur  locus  contractus,  ithi  est  cele- 
hratus  contractus  ;  et  intelligo  locum  contractus,  id)i  est  cele- 
hratus  contractus  non  de  loco,  in  qucni  collata  est  solutio, 
Secundo  casti,  aid  solidio  est  collata  in  locum  certiim,  aid  in 
plurihus  locis  alternative,  ita  quod  electio  sit  actoris  ;  ant  in 
mdliun  locum,  quia  promissio  fuit  facta  simplicitcr.  Primo 
casu  inspicitur  consuetudo,  quce  est  in  illo  loco,  in  quern  est 
collata  solutio  ;  secundo  et  tertio  casu,  inspicitur  locus,  ubi 
petitur.  Ratio  prcedictorum  est,  quia  ibi  est  contracta  neg- 
ligentia  vel  mora}  Now  taking  this  whole  passage  to- 
gether, it  is  difficult  to  misunderstand  the  meaning  of 
Bartolus.  It  is  plain,  that  he  did  not  intend  to  repu- 
diate the  common  distinction,  as  to  the  Lex  loci  contrac- 
tus and  the  Lex  loci  solutionis.  He  gives  full  effect  to 
the  latter,  where  a  fixed  place  is  prescribed  for  pay- 
ment ;  and  whether  he  is  right  or  not,  that  where  no 
place  of  payment  is  named,  the  payment  is  to  be  made 
according  to  the  law  of  the  place  where  it  is  demanded 
by  the  promisee  •  he  goes  no  farther  than  to  assert  the 
general  proposition,  that  the  law  of  the  place  where  the 
contract  is  made,  is  to  govern  in  respect  to  its  solemni- 
ties, and  that  the  law  of  the  place  of  payment  is  to  be 
regarded  in  cases  of  payment."  He  does  not  at  all 
discuss  the  point  which  we  have  now  under  considera- 
tion. 

§  301  a.  These  are  the  principal  passages  adduced 


1  Bartolus,  ad  Cod.  Lib.  1,  tit.  1,  I.  1,  n.  14,  15,  16,  Tom.  7,  p.  4,  edit. 
1602. 

2  Bartolus,  ad  Cod.  Lib.  1,  tit.  1,  1.   1,  n.  14,  15,  16,  edit.  1602.     See 
Vidal  V.  Thompson,  11  Martin,  R.  23. 


Cn.  VIII.]  FOREIGN    CONTRACTS.  483 

from  foreign  jurists,  as  authorities  in  support  of  the 
doctrine,  that  a  contract  is,  or  may  be  valid,  notwith- 
standing it  does  not  in  its  entirety  conform,  either  to 
the  law  of  the  place  w^here  the  contract  is  made,  or  to 
that  of  the  place  where  it  is  to  be  performed.  Now,  in 
the  first  place  it  is  manifest,  that  many  of  these  jurists, 
in  the  passages  cited,  speak  exclusively  as  to  the  for- 
malities and  solemnities,  and  modes  of  execution  of 
contracts ;  and  they  hold,  that  in  these  respects  they 
must  conform  to  the  law  of  the  place  where  they  are 
made.  Some  of  them  make  no  distinction  in  the  ap- 
plication of  this  rule,  between  cases  of  contracts  to  be 
performed  in  foreign  places,  and  cases  of  contracts  to 
be  performed  in  the  place  where  they  are  made.  And, 
perhaps,  the  generality  of  language  used  by  most  of 
them,  even  when  they  do  not  refer  to  this  distinction, 
may  be  fairly  applied,  indifferently,  to  both  classes  of 
cases.  But  several,  and,  indeed,  most  of  them  do  ex- 
pressly and  directly  recognize  the  rule,  that,  where  the 
contract  is  made  in  one  place,  and  is  to  be  performed 
in  another,  not  only  may  the  law  of  the  latter  be  pro- 
perly called  the  locus  contractus  ;  but  that  it  ought  in 
all  respects,  except  as  to  the  formalities,  and  solemni- 
ties, and  modes  of  execution,  to  be  deemed  the  rule  to 
govern  such  cases. 

§  301  J).  In  the  next  place,  when  these  foreign  jurists 
speak  of  payment  or  performance,  they  all  agree,  that 
the  contract  must  be  governed  by  the  law  of  the  place 
of  payment  or  performance,  and  not  by  the  law  of  the 
place  where  the  contract  is  made.  How,  then,  are  we 
to  distinguish  between  different  parts  of  the  payment  ? 
If  principal  and  interest  are  both  to  be  paid  in  a  foreign 
place,  how  can  the  law  of  that  place  govern,  as  to  the 
one,  and  not  as  to  the  other  ?     As  these  jurists  make 


484  CONFLICT    OF   LAWS.  [CH.  "VIIL 

no  distinction  in  respect  to  the  payment  of  principal, 
and  that  of  interest,  but  say  generally,  that  the  pay- 
ment must  be  according  to  the  law  of  the  place  where 
the  payment  is  to  be  made,  it  is  certainly  a  reasonable 
inference,  that  they  did  not  intend  to  make  any  excep- 
tion whatsoever,  but  deemed  both  the  principal  and  the 
interest  governed  by  the  same  rule.  Indeed,  it  will  be 
found  exceedingly  difficult  to  maintain  any  distinction 
between  them,  which  is  not  purely  artificial  and  arbi- 
trary ;  for  interest  is  but  an  incident"  or  accessory  to 
principal. 

§  301  c.  But  we  need  not  rest  entirely  on  the  silence 
of  foreign  jurists  in  these  passages;  for  the  subject  of 
interest  will  be  found  to  be  expressly  treated  by  some 
of  them ;  and,  therefore,  if  any  exception  was  intend- 
ed by  them,  there,  the  exception  would  naturally  have 
found  its  appropriate  place.  The  omission  of  any  ex- 
ception becomes,  under  such  circumstances,  peculiarly 
significant.  Let  us,  therefore,  review,  in  this  connec- 
tion, some  of  the  passages  in  which  the  subject  of 
interest  is  expressly  or  impliedly  discussed. 

§  301  d.  Everhardus  says ;  Aiit  qiicerimus,  qids  locus 
insjnciaiiir,  quoad  accessoria,  idjmta  expensas  et  damna  de 
jure  canonicOy  d  iisu?ris  de  jure  civili,  si  minores  vel  leviores 
sunt  in  iino  loco,  quam  in  alio,  et  similiter  ;  cerium  est,  quod 
inspicitur  locus  destinatco  solutionis;  nedum  quoad princi- 
palem  oUigationem,  scd  etiam  quoad  accessoria}  And  he 
insists,  that  the  leading  jurists,  whom  he  quotes,  hold 
the  same  opinion.  This  language  would  seem  to  be  as 
direct  as  possible  to  the  present  inquiry ;  and  it  affirms 
that  the  Lex  loci  solutionis  must  govern,  as  well  as  to 


1  Everhard.  Consil.  78,  n.  24,  p.  208  ;  Id.  n.  27,  28,  29,  p.  208,  209. 


CH.  VIII.]  FOREIGN    CONTRACTS.  485 

the  interest,  as  to  the  principal,  the  former  being  merely 
accessorial  to  the  latter.  It  is  no  answer  to  suggest, 
that  he  meant  to  speak  of  interest  ex  mora,  or  interest, 
not  expressly  provided  for ;  because  there  is  no  such 
qualification  in  his  language,  and  it  is  positive,  as  well 
as  general,  as  to  the  accessorial  rights,  under  all  circum- 
stances. 

§  301  <?.  Christinseus  avows  the  same  doctrine,  Sic 
etiam  mspicilur  statutiim  loci  desiinatce  solutionis,  si  agatur 
de  extinctione  actionis  per  'prccscriijlionem  statiiriam  vigen- 
tern  in  iino  loco,  et  non  in  alio.  Item  si  agatur  de  accesso- 
riis,  tit  de  expensis,  damnis  et  interesse,  aut  deniqiie  usuris, 
si  majores  vcl  minores  sint  in  iino  loco,  quam  in  alio} 

§  301/.  Paul  Voet  may  fairly  be  deemed  to  hold 
the  same  opinion.  After  having  said,  in  the  passage 
already  cited,  that  there  may  be  a  double  place  of  the 
contract,  one  where  it  is  made,  and  the  other,  where  it 
is  to  be  paid  or  performed,  he  immediately  adds  ;  Hinc 
ratione  effedus,  et  complemcnti  ipsius  contractus,  spectatur 
ille  locus,  in  quern  destinata  est  solutio,  id,  quod  ad  modum, 
mensuram,  usuras,  etc.,  negligentiam  et  moram  post  cofitrac- 
tum  initiim  accedentem  referendum  est  ;'^  and  he  then 
refers  to  several  authorities  in  support  of  this  opinion. 
It  seems  plain  from  this  language,  in  this  connection, 
that,  as  to  interest,  he  deemed  the  true  law,  by  which 
the  legality  of  the  contract  was  to  be  adjudged,  was 
the  law  of  the  place  of  payment. 

§  302.  In  one  passage,  Burgundus  says,  that  interest 
is  to  be  allowed  according  to  the  place  of  the  contract ; 
and  that,  if  the  question  comes  under  consideration  in 


1  Christin.  Decis.  283,  n.  12,  13,  Vol.  1,  p.  355. 

2  P.  Voet,  de  Statut.  '^i  9,  ch.  2,   n.  12,  p.  270,  edit.  1715  ;  Id.  p.  326, 
edit.  IGfil  ;  ante,  ^  281. 

41* 


486  CONFLICT    OF  LAWS.  [CH.  VIII. 

a  foreign  court,  the  interest  stipulated,  though  higher 
than  what  is  lawful  by  the  Lex  fori,  ought  to  be  allowed. 
But,  where  no  interest  is  stipulated,  there,  the  interest 
is  to  be  ex  mora,  according  to  the  law  of  the  place  of 
payment.^  His  language  is ;  Quare  et  imirarmn  modus 
is  co7istituendus  est,  qui  in  regione,  in  qua  est  coniractum, 
legitime  celebratiir.  Et  cum  redditus  duodenarius  in  Gallia 
siipidatiis,  in  controversiam  incidisset,  patrocinante  me,  jiidi- 
catum  est,  in  Curia  Flandrice,  valere  pactum ;  nee  olesse, 
quod  in  Flandria,  uhi  redditus  consiitidus,  sive  Jigpothecce 
impositiis  proponeretur,  usara  semisse  graviores  stipidari 
nofi  liceat.  Quia  ratio  liypotliecce  non  lidbetur,  quw  hac  in 
re  nihil  conferens  ad  siibstantiam  ohligationis,  tantum  extrin- 
seciis  accedit  legitirnce  stipulationi.  Sed,  hoc  intelUge  de 
iisuris  in  stipulationem  deductis,  non  autem  de  iis,  qiice  ex 
mora  delentw,  in  quihus  ad  locum  solutionis  {lit  docemus 
postea)  respicere  oportet?  Now,  if  such  be  the  rule, 
where  the  contract  is  made  in  France,  and  to  be  per- 
formed there,  the  converse  would  seem  equally  to  be 
correct,  if  the  contract  had  been  made  in  France  to  be 
performed  in  Flanders  ;  that  the  contract  would  be  void 
for  usury  as  against  the  law  of  the  latter.  In  another 
place  he  says ;  Idem  ergo  de  solutionihus  dicendum,  sci- 
licet, lit  in  omnibus,  quw  ex  ed  sunt,  aiit  hide  oriuntur,  aid 
circa  illam  consistunt,  ant  aliquo  modo  affinia  sunt,  consue- 
tudinis  loci  spectemus,  uhi  eamdem  implcre  convenit?  He 
adds ;  Itaque  ex  soluiione  sunt  solemnia,  valor  rei  dehitw, 
pretium  monctce  ;    ex  solutione  oriuntur  prcestatio  apochw, 


1  20  Martin,  R.  28  ;  Burgundus,  Tract.  4,  n.   10,  p.    100.     See  also 
Vidal  V.  Thompson,  11  Martin,  R.  23. 

2  Burgundus,  Tract.  4,  n.  10,  p.  109. 

3  Burgundus,   Tract.  4,  n.    25,  26,   p.    114,    115;    Id.  n.  10,  p.  109; 
2  Boullenois,  Observ.  46,  p.  488,  498 ;  ante,  \  293  e. 


CH.  VIII.]  FOREIGN    CONTRACTS.  487 

mii/igra'phce,  similiaque  ;  circa  soliitionem  consistiint  fon- 
der a,  menmrm  honitas  expensw,  mora,  damna,  inter  esse, 
usura  ex  mora  dehitce,  et  ejusmodi}  And  he  concludes 
by  stating  the  reason  of  the  doctrine,  as  given  by  all 
jurists.  Railonem  mutuantur  a  Juris  Consulfis,  qui  imuni- 
qiiemqiie  imlt  in  eo  loco  contraxisse  intcHigi,  in  quo,  lit  sol- 
veret,  sc  obligavit.^  So  that,  if  this  language  is  to  be 
interpreted  in  its  broad  sense,  the  interest  must,  in  all 
cases,  be  according  to  the  law  of  the  place  of  perform- 
ance.^ Burgundus's  opinion  may,  perhaps,  by  some 
persons  be  thought  of  less  value,  however,  because  he 
applies  the  like  rule  to  prescriptions.  Affinia  solutioni 
sunt  prwscriptio,  ohlatio  rei  delitw,  consignatio,  novatio, 
delcgatio,  et  ejiismodi^ 

§  303.  Boullenois  has  nowhere,  to  my  knowledge, 
directly  and  positively  treated  the  question,  whether 
the  interest  may  be  stipulated  for  according  to  the 
place  of  the  contract,  when  payment  is  to  be  made  in 
another  place  where  it  would  be  illegal.  The  citations 
already  referred  to,^  which  are  supposed  to  countenance 
the  affirmative,  put  the  case  only  of  a  rate  of  interest, 
or  of  an  annuity,  good  by  the  law  of  the  place  of  the 
contract,  (and  for  aught  that  appears,  payable  there,) 
and  hold,  that  it  will  be  good,  although  different  from 
the  law  of  the  domicil  of  the  creditor,  or  debtor,  or  even 
from  the  law  of  the  place,  where  the  property,  pledged 
for  security,  is  situate.^     There  is,  however,  a  passage, 


1  Burgundus,  Tract.  4,  n.  27,  p.  115. 

2  Id.  n.  29,  p.  116. 

3  LI.  n.  10,  p.  109  ;  ante,  ^  293  a. 

4  Burgundus,  Tract.  4,  n.  28,  p.  110;  2  Boullenois,  Observ.  40,  p,  488, 
498;  ante,  ^  300  e. 

5  Ante,  ^  300  e. 

*>  2  Boullenois,  Observ.  40,  p.  472,  473. 


488  CONFLICT    OF    LAWS.  [CH.  VIII. 

which  seems  to  indicate,  although  not  directly,  an 
opinion  of  Boullenois  in  the  negative.  After  referring 
to,  and  approving  the  doctrine  of  Gothofredus,  that 
interest  is  to  be  according  to  the  law  of  the  place  of 
payment,  he  adds,  that  it  is  in  this  sense,  that  Gotho- 
fredus is  to  be  understood,  in  what  he  says  of  the  Law, 
20.  of  the  title  of  the  Digest  de  Jurisdictione^  where  he 
supposes  a  Parisian,  who  has  contracted  at  Rome  {De- 
nnis Ronice  conir actum  esse ;)  and  inquires,  whether  the 
Parisian,  if  sued  at  Paris,  shall  be  condemned  to  pay 
the  interest  prescribed  by  the  law  of  Rome  for  the  de- 
lay ;  and  he  answers  in  the  affirmative,  saying  ;  Id  vide- 
tur.  Contractus  enim  istiiis  initium  viiio  caret.  Boullenois 
says,  that  this  decision  is  very  just  in  effect,  if  we  sup- 
pose, that  the  Parisian  has  not  only  made  the  contract 
at  Rome,  but  also  has  promised  to  pay  at  Rome.^  The 
natural  inference  certainly  would  be,  that  if  he  ex- 
pressly agreed  to  pay  interest,  that  he  should  pay 
according  to  the  rate  of  interest  at  the  place  of  pay- 
ment. 

§  304.  It  may  then  be  affirmed  with  some  confidence, 
that  the  foreign  jurists,  who  have  been  relied  on,  do 
not  establish  th '  asserted  doctrine.  On  the  other  hand 
there  are  othei'  foreign  jurists,  whose  doctrines  lead  to 
an  opposite  conclusion.  Thus,  John  Voet  says,  if  a  sti- 
pulation for  a  high  interest  is  allowed  in  one  place,  and 
in  another,  it  is  prohibited,  the  law  of  the  place,  where 
the  contract  is  made,  is  to  decide,  whether  it  is  good,  or 
whether  it  exceeds  that,  which  is  allowable.  Neverthe- 
less, we  must  remember,  that,  in  point  of  law,  that  is 
not  properly  to  be  deemed  the  place  of  the  contract, 


1  Dig.  Lib.  2,  tit.  1,  1.  20  ;  Gothofred.  n.  37. 

2  2  Boullenois,  Observ.  46,  p.  446. 


CH.  viil]  foreign  contracts.  489 

where  the  business  is  transacted,  but  where  the  money 
is  by  the  contract  to  be  paid.  But  good  faith  must 
also  be  observed ;  and  the  place  of  the  contract,  where 
higher  interest  is  allowed,  must  not  be  sought  for  the 
purpose  of  evading  the  law.  Pie  adds ;  that  an  hypo- 
thecation of  property,  as  security,  situated  in  another 
place,  where  the  interest  is  lower,  will  not  vary  the 
rule  ;  for  the  security  will  be  treated  as  merely  accesso- 
rial. And  it  is  more  equitable,  that  the  accessorial  con- 
tract should  be  governed  by  the  law  of  the  place,  where 
the  principal  contract  is  made,  than,  on  the  contrary, 
that  the  principal  contract  should  be  governed  by  the 
law  of  the  place,  in  which  the  accessorial  contract  is 
made.^ 


1  Voet,  ad  Pand.  Lib.  22,  tit.  1,  ^  G,  Tom.  1,  p.  938  ;  Id.  Lib.  4,  tit.  1, 
§  29,  Tom.  1,  p.  241 ;  ante,  ^  293  d.  I  have  given  the  sense,  although 
not  a  precisely  literal  translation  of  the  passage.  The  words  are  ;  Si  alio 
in  loco  graviorum  usurarum  stipulatio  permissa,  in  alio  vetita  sit,  lex  loci, 
in  quo  contractus  celebratus  est,  spectanda  videtur  in  qufEstione,  anmode- 
ralae,  an  vero  modum  excedentes  usurae  per  conventionem  constitute  sint. 
Dummodo  meminerinuis,  ilium  proprie  locum  contractus  in  jure  non  intel- 
ligi,  in  quo  negoiium  gestum  est,  sed  in  quo  pecuniam,  u.  solvevet,  se  quis 
obligavit.  Modo  etiam  bona  fide  omnio  gesta  fuerint,  nee  consuho  talis 
ad  mutuum  contrahendum  locus  electus  sit,  in  quo  graviores  usurse,  quam 
in  loco,  in  quo  alios  contrahendum  fuisset,  probatse  c  nvenientur.  Etiamsi 
de  csEtero  hypotheca  in  sortis  et  usurarum  securifitem  obligata,  in  alio 
loco  sita  sit,  ubi  solas  leviores  usurae  permissas  ;  cum  asquius  sit,  contrac- 
tum  accessorium  regi  ex  loco  principalis  negotii  gesti,  quam  ex  opposite 
contractum  principalem  regi  lege  loci,  in  quo  accessorius  contractus  cele- 
bratur.  It  appears  to  me,  that  the  first  part  of  the  passage  has  been  mis- 
understood, or  at  least  mistranslated,  in  Depau  v.  Humphreys,  20  Martin, 
II.  32.  The  reasoning  of  the  Court  upon  the  passage  will  here  be  given, 
in  justice  to  that  learned  tribunal.  "  The  authority  of  the  passage,"  says 
Martin,  J.  in  delivering  the  opinion  of  the  Court,  "  from  Voet  remains  to 
be  examined.  This  author  says;  Si  alio  in  loco  graviarum  usurarum  sti- 
pulatio permissa,  in  alio  vetita  sit,  lex  loci,  ubi  contractus  celebratus  est, 
spectanda  videtur,  an  moderatae,  an  vero  modum  excedentes  usuraj,  per 
conventionem  slipulata)  sint.  If  in  a  place,  the  stipulation  of  higher  inte- 
rest be  permitted,  in  another  forbidden,  the  law  of  the  place,  in  which  the 


490  CONFLICT    OF    LAWS.  [CH.  YIIL 

§  304  «.  If  to  this  doctrine,  thus  maintained  by  John 
Voet,  (himself  an  author  of  distinguished  weight  and 


contract  was  celebrated,  is  to  be  resorted  to,  in  order  to  ascertain,  whether 
the  lesser  or  the  greater  rate  of  interest  be  stipulated  by  the  contract. 
Thus  far  Voet  teaches  what  we  have  seen  Alexander,  Bartolus,  Burgun- 
dus,  Everhard,  Strykius,  and  Boullenois  teach,  and  the  contrary,  of  which 
no  other  commentator  positively  asserts  ;  what,  in  our  opinion,  every 
sound  principle  of  law  dictates.  But  the  appellant's  counsel  urges,  that 
Voet,  unsays,  in  the  succeeding  paragraph,  what  he  appears  to  have  so 
emphatically  expressed.  The  words  of  the  second  paragraph  are  ;  Dum- 
modo  meminerimus  ilium  proprie  locum  contractus,  in  jure  non  intelligi, 
in  quo  negotium  gestum  est,  sed  in  quo,  ut  pecuniam  solvere!,  se  obligavit. 
In  the  argument,  which  the  appellee's  counsel  draws,  in  this  respect,  he 
is  fully  supported,  by  what  is  said,  arguendo,  by  Lord  Mansfield,  in  Robin- 
son V.  Bland,  and  in  some  degree,  by  Judge  Kent,  in  the  same  manner,  in 
the  case  of  Van  Schaick  v.  Edwards,  already  cited.  In  endeavoring  to 
ascertain  the  character  of  the  rate  of  interest,  stipulated  in  a  note  given  in 
Massachusetts,  Judge  Kent  says  ;  '  Had  the  money,  for  instance,  in  this 
case  been  made  payable  at  Albany,  or  elsewhere  in  this  State  (New  York,) 
then  perhaps  the  decision  in  Robinson  v.  Bland,  would  have  applied.  If, 
in  the  second  paragraph,  Voet  meant  to  introduce  an  exception  to  the  rule 
laid  down  in  the  first ;  if  he  meant  to  teach,  that  the  legality  of  a  rate  of 
conventional  interest,  arising  not  ex  mora,  but  tempore  contractus,  is  ex- 
clusively to  be  tested  by  the  law  loci  solutionis,  even  when  it  is  different 
from  the  law  loci  celebrati  contractus ;  then,  we  cannot  consider  him  as 
affording  to  us  a  legitimate  rule  of  decision  in  the  present  case  ;  because  the 
weight  of  his  authority  is  borne  down  by  that  of  a  crowd  of  the  most  respect- 
able commentators  of  the  law  he  cites.  Perhaps,  he  must  be  understood, 
in  the  second  paragraph,  to  convey  to  the  student  a  warning,  that  by  what 
he  teaches  in  the  first,  he  must  not  be  understood  to  impugn  the  proposi- 
tion, that,  in  a  great  degree,  the  law  loci  solutionis,  influences  the  obliga- 
tion of  the  party,  who  bound  himself,  ut  solveret  pecuniam.  Upon  the 
whole,  we  must  conclude,  as  we  did  in  Norris  v.  Eves,  and  Videl  v. 
Thompson,  that  contracts  are  governed  by  the  law  of  the  country,  in  which 
they  were  made,  in  every  thing  which  relates  to  the  mode  of  construing 
them,  the  meaning  to  be  attached  to  the  expressions,  by  which  the  parties 
bound  themselves,  and  the  nature  and  validity  of  the  engagement.  But 
that,  wherever  the  obligation  be  contracted,  the  performance  must  be  ac- 
cording to  the  law  of  the  place  where  it  is  to  take  place.  In  other  words, 
that  in  a  note  executed  here,  on  a  loan  of  money  made  here,  the  creditor 
may  stipulate  for  the  legal  rate  of  conventional  interest  authorized  by  our 
law,  ahhough  such  a  rate  be  disallowed  in  the  place,  at  which  payment  is 
to  be  made.'  "     If  I  am  right  in  the  remarks  in  the  text,  it  will  be  found, 


CH.  viil]  foreign  contracts.  491 

ability,)  we  add  the  concurrent  testimony  of  Huberus, 
Everhardus,  Christinfeus,  and  Paul  Voet,  already  cited/ 
on  the  same  side,  and  the  entire  absence  of  any  direct 
and  absolute  authority  to  the  contrary,  it  is  not  perhaps 
too  much  to  affirm,  that  the  decision  already  alluded  to 
of  the  Supreme  Court  of  Louisiana,^  is  not  supported 
by  the  reasoning  or  the  principles  of  foreign  jurists.^ 
It  is  certainly  also  at  variance  with  the  doctrine  main- 
tained by  Lord  Mansfield,  and  the  Judges  of  the  King's 
Bench,  in  a  highly  interesting  case,  (although  not  posi- 
tively necessary  to  the  judgment  then  pronounced,) 
that  the  law  of  the  place  of  payment,  or  performance, 
constitutes  the  true  test,  by  which  to  ascertain  the 
validity  or  invalidity  of  contracts.'*  And  finally,  in  a 
very  recent  case  the  Supreme  Court  of  the  United 
States  have  adopted  the  doctrine,  that,  where  a  contract 
is  made  in  one  place,  to  be  executed  in  another,  it  is  to 
be  governed,  as  to  usury,  by  the  law  of  the  place  of 
performance,  and  not  by  the  law  of  the  place  where  it 
is  made.  So,  that  if  the  transaction  is  lond  fide,  and 
not  with  intent  to  evade  the  law  against  usury,  and  the 
law  of  the  place  of  performance  allows  a  higher  rate  of 
interest  than  that  permitted  at  the  place  of  the  contract, 
the  parties  may  lawfully  stipulate  for  the  higher  in- 
terest.5     But,  then  the  transaction  must  be  hond  fide, 


that  the  authorities  cited  by  the  learned  Judge  by  no  means  justify  the 
judgment.  See  Bouhier,  Cout.  de  Bourgogne,  Vol.  1,  ch.  21,  p.  313; 
3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  773,  774,  775. 

1  Ante,  ^  299,  300  b,  ^  300  c. 

2  Depau  V.  Humphreys,  20  Martin,  R.  1. 

^  See  the  late  case  of  Carnegie  v.  Morrison,  2  Mete.  R.  391.     Curtis, 
arguendo. 

4  Robinson  v.  Bland,  2  Burr.  1077.    See  also  Van  Schaick  v.  Edwards, 
2  Johns.  Cas.  355. 

5  Andrews  v.  Pond,  13  Peters,  R.  G5,  77,  78. 


492  CONFLICT    OF   LAWS.  [CH.  VIIL 


and  not  intended  as  a  mere  cover  of  usury.^  Bohier, 
indeed,  thinks  that  every  contract  of  this  sort  would 
ahnost  from  its  very  terms  and  nature  import  a  design 
to  evade  the  laws,  and  to  cover  usury.  But  he  mani- 
festly presses  the  presumption  far  beyond  its  legitimate 
application ;  for  the  circumstances  of  the  case  may  often 
establish,  that  the  contract  is  perfectly  innocent  and 
praiseworthy. 

§  305.  It  has  been  said,  that,  if  the  principle  be,  that 
a  contract,  valid  in  the  place  where  the  contract  is  cele- 
brated, is  void,  if  it  is  contrary  to  the  law  of  the  place 
of  payment,  it  must  establish  the  converse  proposition, 
that  a  contract,  void  by  the  law  of  the  place  where  it 
is  made,  is  valid,  if  good  by  the  law  of  the  place  of 
payment.^  This  would  seem  to  be  reasonable ;  and  the 
doctrine  is  supported  by  the  modern  cases,  notwith- 
standing the  old  cases  have  been  supposed  to  lead  to  a 
contrary  conclusion.  In  one  case,^  a  bond  was  executed 
in  Ireland  for  a  debt  contracted  in  England  ;  and  be* 
cause  it  constituted  a  security  on  lands  in  Ireland,  Lord 
Chancellor  Hardwicke  held,  that  it  was  valid,  although 
it  bore  the  Irish  interest  of  seven  per  cent.  But  he 
thought  it  would  have  been  otherwise  if  it  had  beeu  a 
simple  contract  debt ;  or  if  the  bond  had  been  executed 
in  England.^  Mr.  Chancellor  Kent  has  correctly  laid 
down  the  modern  doctrine  ;  and  he  is  fully  borne  out 
by  the  authorities.  "  The  law  of  the  place,"  says  he, 
"  where  the  contract  is  made,  is  to  determine  the  rate 


'  Bouhier,  Cout.  de  Bourgr.  Vol.  1,  ch.  21,  p.  413. 

2  Depau  V.  Humphreys,  20  Marliii,  R.  1,  30. 

3  Connor  v.  Bellamont,  2  Atk.  R.  381. 

*  Stapleton  v.  Conway,   3  Alk.   R.    727  ;    S.  C.  1  Ves.  R.  427.     See 
Dewaru.  Span,  3  T.  R.  425. 


CH.  VIII.]  FOREIGN   CONTRACTS.  493 

of  interest,  when  the  contract  specifically  gives  interest; 
and  this  will  be  the  case,  though  the  loan  be  secured  by 
a  mortgage  on  lands  in  another  State,  unless  there  be 
circumstances  to  show,  that  the  parties  had  in  view  the 
law  of  the  latter  place  in  respect  to  interest.  When 
that  is  the  case,  the  rate  of  interest  of  the  place  of  pay- 
ment is  to  govern."  ^ 

§  30G.  But  it  has  been  asked,  if  this  be  the  esta- 
blished doctrine,  of  what  use  is  it  for  any  legislature  to 
pass  a  law  for  the  protection  of  the  weak  and  neces- 
sitous ?  ^  And  the  case  of  minors  has  been  mentioned, 
as  exhibiting  the  inconvenience  of  the  principle.  But 
we  have  already  seen,  that  minors  in  one  country  may 
lawfully  contract  in  another,  in  which  they  are  deemed 
of  age.^  The  true  answer  to  all  such  suggestions  is, 
that  no  country  can  give  to  its  own  laws  any  extra- 
territorial authority,  so  as  to  bind  other  nations.  If  it 
undertakes  to  legislate  in  regard  to  acts  done,  or  con- 
tracts performed  elsewhere,  it  can  claim  for  its  own 
laws  no  other  validity,  than  such  as  the  comity  of  other 
nations  may  choose  to  allow  towards  them.  It  may,  if 
it  chooses,  deem  all  such  acts  and  contracts  valid,  or 
invalid,  according  to  its  own  laws ;  but  it  cannot  im- 
pose a  like  obligation  on  other  nations,  so  to  treat 
them.  The  repose  and  common  interest  of  all  nations, 
therefore,  require  each  to  observe  towards  all  others  the 
principles  of  reciprocal  justice  and  comity ;  and  these. 


1  2  Kent,  Coram.  Lect.  39,  p.  460,  461,  3d  edit.  ;  D'Wolf  u.  Johnson, 
10  Wheaton,  R.  367  ;  Scofield  v.  Day,  20  Johns.  103;  Thompson  v. 
Powles,  2  Simons,  R.  194  ;  Robinson  v.  Bland,  2  Burr.  1077  ;  Boyce  v. 
Edwards,  4  Peters,  R.  111.  But  see  Chapman  v.  Robertson,  6  Paige,  R. 
627,  630. 

2  Depau  V.  Humphreys,  20  Martin,  R.  1,  30. 

3  Saul  V.  His  Creditors,  17  Martin,  R.  596,  597  ;  ante,  '^i  82. 

CONFL.  43 


494  CONFLICT    OF   LAWS.  [CH.  VIII. 

as  we  have  seen,  are  best  subserved  by  tbe  adoption  of 
the  general  rule,  that  the  law  of  the  place  of  the  con- 
tract and  payment  shall  govern.^ 

§  307.  Analogous  to  the  rule  respecting  interest, 
would  seem  to  be  the  rule  of  damages  in  cases  of  con- 
tract, where  damages  are  to  be  recovered  for  a  breach 
thereof  ex  mora,,  or  where  the  right  to  damages  arises 
ex  delicto,  from  some  wrong,  or  injury  done  to  personal 
property.  Thus,  if  a  ship  should  be  illegally  or  tortiously 
converted  in  the  East  Indies  by  a  party,  the  interest 
there  will  be  allowed  by  way  of  damages  in  a  suit 
against  him.^  So,  the  rate  of  damages  on  a  dishonored 
bill  of  exchange  will  be  according  to  the  Lex  loci  con- 
tractus of  the  particular  party .^  So  if  a  bill  of  exchange 
be  made  in  one  State  and  indorsed  in  another  State, 
and  again  indorsed  by  a  second  indorser  in  a  third 
State,  the  rate  of  damages  upon  the  dishonor  of  the  bill 
will  be  against  each  party  according  to  the  law  of  the 
place,  where  his  own  contract  had  its  origin,  either  by 
making,  or  by  indorsing  the  bill.^  So,  if  a  note,  made 
in  a  foreign  country,  is  for  the  payment  of  a  certain 
sum  in  sugar,  and  by  the  custom  of  that  place,  the  like 
notes  are  payable  in  sugar  at  a  valuation,  the  law  of 
the  place  is  to  govern  in  assessing  the  damages  for  a 
breach  thereof.^ 

§  308.  Where  a  contract  is  made  in  one  country,  and 


1  Ante,  ^  242,  280. 

2  Ekins  I'.  East  India  Company,  1  P.  Will.  395,  390  ;  Consequa  v. 
Willing,  Peters,  Cir.  R.  225 ;  Id.  303  ;  Holmes  v.  Barclay,  4  Louis. 
Ann.  R.  64. 

3  Slacum  V.  Pomeroy,  6  Cranch,  221  ;  Ilazleluirst  v,  Kean,  4  Yeates, 
R.  19  ;  Pothier  on  Oblig.  n.  171. 

4  Post,  ^  314,  317.- 

5  Courtois  V.  Carpentier,  1  Wash.  Cir.  R.  376. 


CH.  VIII.]  FOREIGN    CONTRACTS.  495 

is  payable  in  the  currency  of  that  country,  and  a  suit 
is  afterwards  brought  in  another  country,  to  recover 
for  a  breach  of  the  contract,  a  question  often  arises  as 
to  the  manner  in  which  the  amount  of  the  debt  is  to 
be  ascertained,  whether  at  the  nominal  or  established 
par  value  of  the  currencies  of  the  two  coilntries,  or 
according  to  the  rate  of  exchange  at  the  particular 
time  existing  between  them.  In  all  cases  of  this  sort, 
the  place  where  the  money  is  payable,  as  well  as  the 
currency,  in  which  it  is  promised  to  be  paid,  are  (as  we 
shall  presently  see)  material  ingredients.^  For  instance, 
a  debt  of  £100  sterling  is  contracted  in  England,  and 
is  payable  there ;  and  afterwards  a  suit  is  brought  in 
America  for  the  recovery  of  the  amount.  The  present 
par  fixed  by  law  between  the  two  countries  is,  to  esti- 
mate the  pound  sterling  at  four  dollars  and  forty-four 
cents.^  But  the  rate  of  exchange,  on  bills  drawn  in 
America  on  England,  is  generally  at  from  eight  to  ten 
per  cent,  advance  on  the  same  amount.  In  a  recent 
case,  it  was  held  by  the  King's  bench,  in  an  action  for 
a  debt  payable  in  Jamaica,  and  sued  in  England,  that 
the  amount  should  be  ascertained  by  adding  the  rate  of 
exchange  to  the  par  value,  if  above  it ;  and  so,  vice 
versa,  by  deducting  it,  when  the  exchange  is  below  the 
par.^     Perhaps  it  is  difficult  to  reconcile  this  case  with 


1  Post,  ^  310. 

2  This  is  the  par  for  ordinary  commercial  purposes.  But  by  the  Act  ol 
Congress  of  1832,  ch.  224,  ^  16,  the  par,  for  the  purpose  of  estimating 
the  value  of  goods,  paying  an  ad  valorem  duty,  and  for  that  purpose  only, 
is  declared  to  be  to  estimate  a  pound  sterling  at  four  dollars  and  eighty 
cents.  The  still  more  recent  Act  of  22d  July,  1842,  ch.  66,  makes  the 
•par,  for  estimating  duties  in  like  cases,  at  four  dollars  and  eighty-four 
cents  for  the  pound  sterling. 

3  Scott  V.  Bevan,  2  Barn.  &  Adolph.  78.  —  Lord  Tenterden  in  deliver 


496  CONFLICT    OF    LAWS.  [CH.  VIIL 

the  doctrine  of  some  other  cases.^  In  a  late  American 
case,  where  the  payment  was  to  be  in  Turkish  piastres, 
(•but  it  does  not  appear  from  the  report,  where  the  con- 
tract was  made,  or  was  made  payable,)  it  was  held  to 
be  the  settled  rule,  "  where  money  is  the  object  of  the 
suit,  to  fix  the  value  according  to  the  rate  of  exchange, 
at  the  time  of  the  trial."  ^  It  is  impossible  to  say,  that 
a  rule  laid  down  in  such  general  terms  ought  to  be 
deemed  of  universal  application  ;  and  cases  may  easily 
be  imagined,  which  may  justly  form  exceptions. 

§  309.  The  proper  rule  would  seem  to  be,  in  all  cases, 
to  allow  that  sum  in  the  currency  of  the  country  where 
the  suit  is  brought,  which  should  approximate  most 
nearly  to  the  amount  to  which  the  party  is  entitled  in 
the  country  where  the  debt  is  payable,  calculated  by 
the  real  par,  and  not  by  the  nominal  par  of  exchange.^ 
This  would  seem  to  be  the  rule,  also,  which  is  adopted 
by  foreign  jurists.*     In  some  countries  there  is  an  esta- 


ing  the  opinion  of  the  Court  in  favor  of  the  rule  said  ;  "  Speaking  for 
myself  personally,  I  must  say,  that  I  still  hesitate  as  to  the  propriety  of 
the  conclusion."  See  Delegal  v.  Naylor,  7  Bing.  R.  460;  Ekinsu.  East 
India  Company,  1  P.  Will.  396. 

'  See  Cockerell  v.  Barber,  16  Vcs.  461  ;  post,  ^  312. 

2  Lee  V.  Wilcocks,  5  Serg.  &  Pi,a\vle,  48.  —  It  is  probable,  that  in  this 
case  the  money  was  payable  in  Turkey. 

3  In  Cash  v.  Kennon,  (11  Vesey,  R.  314,)  Lord  Eldon  held,  that,  if  a 
man  in  a  foreign  country  agrees  to  pay  -ClOO  in  London,  upon  a  given 
day,  he  ought  to  have  that  sum  there  on  that  day.  And  if  he  fails  in  that 
contract,  wherever  the  creditor  sues  him,  the  law  of  that  country  ought  to 
give  him  just  as  much  as  he  would  have  had,  if  the  contract  had  been  per- 
formed. J.  Voet  says,  "Si  major,  alibi  minor,  eorundem  nummorum  va- 
lor sit,  in  solutione  faclenda ;  non  tarn  spectanda  poteslas  pecuniae,  quas 
est  in  loco,  in  quo  contractus  cclcbratus  est,  quarai  potius  quaj  obtinet  in 

.regione  ilia,  in  qua  contractus  implcmcntum  faciendum  est."  Voet,  ad 
Pand.  Lib.  12,  tit.  1,  ^  25  ;  Henry  on  Foreign  Law,  43,  note.  See  also 
ante,  ^  281  ;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p. 
771,  772,  773. 

4  Ante,  ^  281. 


CH.  VIII.]  FOREIGN    CONTRACTS.  497 

blislied  par  of  exchange  by  law,  as  in  the  United  States, 
where  the  pound  sterling  of  England  is  now  valued  at 
four  dollars  and  forty-four  cents  for  all  purposes,  except 
the  estimation  of  the  duties  on  goods  paying  an  ad  va- 
lorem duty.^  In  other  countries,  the  original  par  has, 
by  the  depreciation  of  the  currency,  become  merely 
nominal ;  and,  there,  we  should  resort  to  the  real  par. 
Where  there  is  no  established  par  from  any  depreciation 
of  the  currency,  there,  the  rate  of  exchange  may  justly 
furnish  a  standard,  as  the  nearest  approximation  of  the 
relative  value  of  the  currencies.  And  where  the  debt 
is  payable  in  a  particular  known  coin,  as  in  Sicca  rupees, 
or  in  Turkish  piastres,  there  the  mint  value  of  the  coin, 
and  not  the  mere  bullion  value,  in  the  country  where 
the  coin  is  issued,  would  seem  to  furnish  the  proper 
standard,  since  it  is  referred  to  by  the  parties  in  their 
contract,  by  its  descriptive  name  as  coin. 

§  310.  But  in  all  these  cases  we  are  to  take  into  con- 
sideration the  place  where  the  money  is,  by  the  origi- 
nal contract,  payable ;  for  wheresoever  the  creditor  may 
sue  for  it,  he  is  entitled  to  have  an  amount  equal  to 
what  he  must  pay,  in  order  to  remit  it  to  that  country .- 
Thus,  if  a  note  were  made  in  England  for  ^100  ster- 
ling, payable  in  Boston  (Mass.),  if  a  suit  were  brought 
in  Massachusetts,  the  party  would  be  entitled  to  recover 
four  hundred  and  forty-four  dollars  and  forty-four  cents, 
that  being  the  established  par  of  exchange  by  our  laws. 
But,  if  our  currency  had  become  depreciated  by  a  de- 
basement of  our  coinage,  then  the  depreciation  ought  to 
be  allowed  for,  so  as  to  bring  the  sum  to  the  real  par. 


1  Ante,  ^  308,  n.  2. 

2  See  I  Chitty  on  Coram.  andManufact.  ch.  12,  p.  G50,  651.    See  Ante, 
^281,  308. 

42* 


498  CONFLICT    OF   LAWS.  [CH.  VIIL 

instead  of  the  nominal  par.^  But  if  a  like  note  were 
given  in  England  for  £100,  payable  in  England,  or  pay- 
able generally  (whicb  in  legal  effect  would  be  the  same 
thing) ;  there,  in  a  suit  in  Massachusetts,  the  party 
would  be  entitled  to  recover,  in  addition  to  the  four 
hundred  and  forty-four  dollars  and  forty-four  cents,  the 
rate  of  exchange  between  Massachusetts  and  England, 
which  is  ordinarily  from  eight  to  ten  per  cent,  above 
par.  And  if  the  exchange  were  below  par,  a  propor- 
tionate deduction  should  be  made;  so  that  the  party 
would  have  his  money  replaced  in  England  at  exactly 
the  same  amount  which  he  would  be  entitled  to  recover 
in  a  suit  there. 

§  311.  This  distinction  may,  perhaps,  reconcile  some 
of  the  cases,  between  which  there  might  seem,  at  first 
view,  to  be  an  apparent  contrariety.  It  was  evidently 
acted  on  in  an  old  case,  where  money,  payable  in  Ire- 
land, was  sued  for  in  England  ;  and  the  Court  allowed 
Irish  interest,  but  directed  an  allowance  to  the  debtor 
for  the  payment  of  it  in  England,  and  not  in  Ireland.^ 
It  is  presumable,  that  the  money  was  of  less  value  in 
Ireland  than  in  England.  A  like  rule  was  adopted  in 
a  later  case,  where  money  payable  in  India  was  reco- 


1  Paul  Voet  has  expressed  an  opinion  upon  this  subject  in  general 
terms.  "Quid,  si  in  specie  de  nummorum  aut  redituuna  solutione  diffi- 
cultas  incidat,  si  forte  valor  sit  immutatus  ;  an  spectabitur  loci  valor,  ubi 
contractus  erat  celebratus,  an  loci,  in  quem  deslinata  erat  solutio  ?  Re- 
spondeo,  ex  generali  regula,  spectandum  esse  loci  statutum,  in  quem  des- 
tinata  erat  solutio."  P.  Voet,  de  Stat.  ^  9,  ch.  2,  ^  15,  p.  271  ;  Id.  p. 
328,  edit.  1661.  And  he  applies  the  same  rule,  where  contracts  are  for 
specific  articles,  the  measures  whereof  are  different  in  different  countries. 
Id.  ^  IG,  p.  271  ;  Id.  p.  328,  edit.  1661. 

~  Dungannon  v.  Hackett,  1  Eq.  Cas.  Abr.  288,  289. 


CH.  VIII.]  FOREIGN    CONTRACTS.  499 

vered  in  England  ;  and  the  charge  of  remitting  it  from 
India  was  directed  to  be  deducted.^ 

§  311  a.  There  is,  however,  an  irreconcilable  differ- 
ence in  some  of  the  authorities  on  this  subject.  Thus, 
it  has  been  held  in  New  York,  that,  where  a  debt  is 
contracted  in  a  foreign  country  and  is  payable  there,  if 
the  creditor  afterwards  sues  the  debtor  here  for  the  debt, 
he  is  entitled  to  recover  only  for  the  debt  according  to 
the  par  of  exchange,  and  not  according  to  the  rate  of 
exchange,  necessary  to  remit  the  amount  to  the  foreign 
country.  On  that  occasion  the  Court  said  ;  "  The  debt 
is  to  be  paid  according  to  the  par,  and  not  the  rate  of 
exchange.  It  is  recoverable  and  payable  here  to  the 
plaintiffs,  or  their  agent,  and  the  Courts  are  not  to  in- 
quire into  the  disposition  of  the  debt,  after  it  reaches 
the  hands  of  the  agent.  He  may  remit  the  debt  to  his 
principal  abroad  in  bills  of  exchange,  or  he  may  invest 
it  here  on  his  behalf,  or  transmit  it  to  some  other  part 
of  the  United  States,  or  to  other  countries  on  the  same 
account.  We  cannot  trace  the  disposition  which  is  to 
take  place  subsequent  to  the  recovery,  nor  award  spe- 
cial damages  upon  such  uncertain  calculations."  The 
same  doctrine  has  been  adhered  to  in  subsequent  deci- 
sions.^ It  has  also  been  adopted  by  the  Supreme  Court 
of  Massachusetts,  as  the  proper  rule  in  all  cases,  except 
bills  of  exchange.'^  On  the  contrary,  in  the  Circuit 
Courts  of  the  United  States  the  opposite  doctrine  has 
been  maintained.^ 


1  Ekins  V.  The  East  India  Company,  1  P.  Will.  396  ;  S.  C.  2  Bro.  Par. 
Cas.  382,  edit.  Tomlins. 

2  Martin  v.  Franklin,  4  Johns.  R.  124,  125. 

3  Scofield  V.  Day,  20  Johns.  R.  102. 

•1  Adanns  v.  Cordis,  8  Pick.  R.  2fi0,  2(56,  267. 

5  Smith  t'.  Shaw,  2  Wash.  Cir.  R.  107,  163  ;  Grant  r.  Healey,  2  Chand. 


500  CONFLICT    OF    LAWS.  [CH.    VIIL 

§  312.  Ill  one  case,  where  by  a  will  made  in  India,  a 
legacy  was  given  of  30,000  Sicca  rupees,  and  the  testa- 


Law  Reporter,  113  ;  S.  C.  3  Sumner,  R.  523  ;  Ante,  ^  284  a.  In  this 
last  case  the  subject  was  considered  at  great  length  ;  and  the  following  re- 
marks were  made  by  the  Judge,  in  delivering  the  opinion  of  the  Court. 
"  I  take  the  general  doctrine  to  be  clear,  that  whenever  a  debt  is  made  pay- 
able in  one  country,  and  is  afterwards  sued  for  in  another  country,  the  cre- 
ditor is  entitled  to  receive  the  full  sura  necessary  to  replace  the  money  in 
the  country  where  it  ought  to  have  been  paid,  with  interest  for  the  delay  ; 
for  then  and  then  only,  is  he  fully  indemnified  for  the  violation  of  the  con- 
tract. In  every  such  case  the  plaintiff  is,  therefore,  entitled  to  have  the 
debt  due  to  him  first  ascertained  at  the  par  of  exchange  between  the  two 
countries,  and  thea  to  have  the  rate  of  exchange  between  those  countries 
added  to,  or  subtracted  from,  the  amount,  as  the  case  may  require,  in  order 
to  replace  the  money  in  the  country  where  it  ought  to  be  paid.  It  seems 
tome,  that  this  doctrine  is  founded  on  the  true  principles  of  reciprocal  jus- 
tice. The  question,  therefore,  in  all  cases  of  this  sort,  where  there  is  not 
a  known  and  settled  commercial  usage  to  govern  them,  seems  to  me  to  be 
rather  a  question  of  fact  than  of  law.  In  cases  of  accounts  and  advances, 
the  object  is  to  ascertain  where,  according  to  the  intention  of  the  parlies, 
the  balance  is  to  be  repaid  ?  In  the  country  of  the  creditor,  or  of  the 
debtor?  In  Lanusse  v.  Barker,  (3  Wheat.  R.  101, 147,)  the  Supreme  Court 
of  the  United  States  seem  to  have  thought,  that  where  money  is  advanced 
for  a  person  in  another  State,  the  implied  understanding  is  to  replace  it  in 
the  country  where  it  is  advanced,  unless  that  conclusion  is  repelled  by  the 
agreement  of  the  parties,  or  by  other  controlling  circumstances.  Governed 
by  this  rule,  the  money  being  advanced  in  Boston,  so  far  as  it  was  not  re- 
imbursed out  of  the  proceeds  of  the  sales  at  Trieste,  would  seem  to  be  pro- 
per to  be  repaid  in  Boston.  In  relation  to  mere  balances  of  account 
between  a  foreign  factor  and  a  home  merchant,  there  may  be  more  diffi- 
culty in  ascertaining  where  the  balance  is  reimbursable,  whether  where 
the  creditor  resides,  or  where  the  debtor  resides.  Perhaps  it  will  be 
found,  in  the  absence  of  all  controlling  circumstances,  the  truest  rule  and 
the  easiest  in  its  application,  that  advances  ought  to  be  deemed  reimbursa- 
ble at  the  place  where  they  are  made,  and  sales  of  goods  accounted  for  at 
the  place  where  they  are  made,  or  authorized  to  be  made.  Thus,  if  a  con- 
signment is  made  in  one  country  for  sales  in  another  country,  where  the 
consignee  resides,  the  true  rule  would  seem  to  be,  to  hold  the  consignee 
bound  to  pay  the  balance  there,  if  due  from  him  ;  and  if  due  to  him,  on 
advances  there  made,  to  receive  the  balance  from  the  consignor  there. 
The  case  of  Consequa  v.  Fanning,  (3  Johns.  Cli.  R.  587,  610,)  which  was 
reversed  in  17  Johns.  E..  511,  proceeded  upon  this  intelligible  ground,  both 
in  the  Court  of  Chancery,  and  in  the  Court  of  Errors  and  Appeals,  the  dif- 


CH.  viil]  foreign  contracts.  501 

tor  afterwards  died  in  England,  leaving  personal  pro- 
perty, both  in  England  and  in  India ;  upon  a  suit  in 


ference  between  these  learned  tribunals  not  being  so  much  in  the  rule,  as 
in  its  application  to  the  circumstances  of  that  particular  case.  I  am  aware, 
that  a  different  rule,  in  respect  to  balances  of  account  and  debts  due  and 
payable  in  a  foreign  country,  was  laid  down  in  Martin  v.  Franklin,  (4 
Johns.  R.  125,)  and  Scofield  v.  Day,  (20  Johns.  R.  102  ;)  and  that  it  has 
been  followed  by  the  Supreme  Court  of  Massachusetts,  in  Adams  v.  Cordis, 
(8  Pick.  R.  260.)  It  is  with  unaffected  diffidence,  that  I  venture  to  ex- 
press a  doubt  as  to  the  correctness  of  the  decisions  of  these  learned  courts 
upon  this  point.  It  appears  to  me,  that  the  reasoning  in  4  Johns.  R.  125, 
which  constitutes  the  basis  of  the  other  decisions,  is  far  from  being  satis- 
factory. It  states  very  properly,  that  the  Court  have  nothing  to  do  with 
inquiries  into  the  disposition  which  the  creditor  may  make  of  his  debt 
after  the  money  has  reached  his  hands  ;  and  the  Court  are  not  to  award 
damages  upon  such  uncertain  calculations,  as  to  the  future  disposition  of 
it.  But  that  is  not,  it  is  respectfully  submitted,  the  point  in  controversy. 
The  question  is,  whether  if  a  man  has  undertaken  to  pay  a  debt  in  one 
country,  and  the  creditor  is  compelled  to  sue  him  for  it  in  another  country, 
where  the  money  is  of  less  value,  the  loss  is  to  be  borne  by  the  creditor, 
who  is  in  no  fault,  or  by  the  debtor,  who  by  the  breach  of  this  contract 
has  occasioned  the  loss.  The  loss,  of  which  we  here  speak,  is  not  a  future 
contingent  loss.  It  is  positive,  direct,  immediate.  The  very  rate  of  ex- 
change shows,  that  the  very  same  sum  of  money,  paid  in  the  one  country, 
is  not  an  indemnity  or  equivalent  for  it,  when  paid  in  another  country,  to 
which  by  the  default  of  the  debtor  the  creditor  is  bound  to  resort.  Sup- 
pose a  man  undertakes  to  pay  another  $  10,000  in  China,  and  violates  his 
contract ;  and  then  he  is  sued  therefor  in  Boston,  when  the  money,  if  duly 
paid  in  China,  would  be  worth  at  the  very  moment  20  per  cent  more  than 
it  is  in  Boston  ;  what  compensation  is  it  to  the  creditor  to  pay  him  the 
$  10,000  at  the  par  in  Boston  ]  Indeed,  I  do  not  perceive  any  just  founda- 
tion for  the  rule,  that  interest  is  payable  according  to  the  law  of  the  place 
where  the  contract  is  to  be  performed,  except  it  be  the  very  same  on 
which  a  like  claim  may  be  made  as  to  the  principal,  viz.,  that  the  debtor 
undertakes  to  pay  there,  and  therefore  is  bound  to  put  the  creditor  in  the 
same  situation  as  if  he  had  punctually  complied  with  his  contract  there. 
It  is  suggested,  that  the  case  of  bills  of  exchange  stands  upon  a  distinct 
ground,  that  of  usage;  and  is  an  exception  from  the  general  doctrine.  I 
think  otherwise.  The  usage  has  done  nothing  more  than  ascertain  what 
should  be  the  rate  of  damages  for  a  violation  of  the  contract  generally,  as 
a  matter  of  convenience  and  daily  occurrence  in  business,  rather  than  to 
have  a  fluctuating  standard  dependent  upon  the  daily  rates  of  exchange ; 
exactly  fur  the  same  reason  that  the  rule  of  deducting  one  third  new  for 


502  CONFLICT    OF   LAWS.  [CH.  VIIL 

chancery  for  the  legacy,  the  master,  to  whom  it  was 
referred,  estimated  the  Sicca  rupees  at  2-5.  6cl  per  Sicca 
rupee,  being  the  East  India  Company's  rate  of  exchange 


old  is  applied  to  cases  of  repairs  of  ships,  and  the  deduction  of  one  third 
from  the  gross  freight  is  applied  in  cases  of  general  average.  It  cuts  off 
all  minute  calculations  and  inquiries  into  evidence.  But  incases  of  bills  of 
exchange,  drawn  between  countries  where  no  such  fixed  rate  of  damages 
exists,  the  doctrine  of  damages,  applied  to  the  contract,  is  precisely  that 
which  is  sought  to  be  applied  to  the  case  of  a  common  debt  due  and  paya- 
ble in  another  country  ;  that  is  to  say,  to  pay  the  creditor  the  exact  sum, 
which  he  ought  to  have  received  in  that  country.  That  is  sufficiently 
clear  from  the  case  of  Mellish  v.  Simeon,  (2  H.  Black.  R.  378,)  and  the 
whole  theory  of  re-exchange.  My  brother,  the  late  Mr.  Justice  Washing- 
ton, in  the  case  of  Smith  v.  Shaw,  (2  Wash.  Cir.  R.  167,  168,  in  1808,) 
which  was  a  suit  brought  by  an  English  merchant  on  an  account  for  goods 
shipped  to  the  defendants'  testator,  where  the  money  was  doubtless  to  be 
paid  in  England,  and  a  question  was  made,  whether,  it  being  a  sterling 
debt,  it  should  be  turned  into  currency  at  the  par  of  exchange,  or  at  the 
then  rate  of  exchange,  held,  that  the  debt  was  payable  at  the  then  rate  of 
exchange.  To  which  Mr.  Ingersoll,  at  that  time  one  of  the  ablest  and 
most  experienced  lawyers  at  the  Philadelphia  bar,  of  counsel  for  the  defend- 
ant, assented.  It  is  said,  that  the  point  was  not  started  at  the  argument, 
and  was  settled  by  the  Court  suddenly,  without  advancing  any  reasons  in 
the  support  of  it.  I  cannot  but  view  the  case  in  a  very  different  light. 
The  point  was  certainly  made  directly  to  the  Court,  and  attracted  its  full 
attention.  The  learned  Judge  was  not  a  Judge  accustomed  to  come  to 
sudden  conclusions,  or  to  decide  any  point  which  he  had  not  most  scrupu- 
lously and  deliberately  considered.  The  point  was  probably  not  at  all 
new  to  him  ;  for  it  must  frequently  have  come  under  his  notice  in  the  vast 
variety  of  cases  of  debts  due  on  account  by  Virginia  debtors  to  British  cre- 
ditors, which  were  sued  for  during  the  period  in  which  he  possessed  a 
most  extensive  practice  at  the  Richmond  bar.  The  circumstance,  that  so 
distinguished  a  lawyer  as  Mr.  Ingersoll  assented  to  the  decision,  is  a  far- 
ther proof  to  me  that  it  had  been  well  understood  in  Pennsylvania  to  be 
the  proper  rule.  If,  indeed,  I  were  disposed  to  indulge  in  any  criticism,  I 
might  say,  that  the  cases  in  4  Johns.  R.  125,  and  20  Johns.  R.  101,  102, 
do  not  appear  to  have  been  much  argued  or  considered ;  for  no  general 
reasoning  is  to  be  found  in  either  of  them  upon  principle,  and  no  author- 
ities were  cited.  The  arguments  and  the  opinion  contained  little  more 
than  a  dry  statement  and  decision  of  the  point.  The  first  and  only  case, 
in  which  the  question  seems  to  have  been  considered  upon  a  thorough  ar- 
gument, is  that  in  8  Pick.  R.  260.  I  regret  that  I  am  not  able  to  follow 
its  authority  with  a  satisfied  assent  of  mind." 


CH.  Vm.]  FOREIGN    CONTRACTS.  503 

between  India  and  Great  Britain,  (i.  e.  on  bills  drawn 
in  India  on  Great  Britain,)  at  the  time  the  legacy  be- 
came due.  At  the  same  time,  the  par  or  sterling  value 
of  the  Sicca  rupees  in  India  and  England  was  2-5.  Id. 
per  Sicca  rupee ;  and  the  East  India  Company's  rate  of 
exchange  between  Great  Britain  and  India,  (i.  e.  on  bills 
drawn  in  England  on  India,)  was  25.  od.  Upon  excep- 
tions taken  to  the  Report,  it  was  contended,  that  either 
the  par  of  exchange,  or  the  rate  of  exchange  between 
Great  Britain  and  India  ought  to  have  been  adopted.^ 
Lord  Eldon  on  that  occasion  said :  "  In  all  the  cases 
reported  upon  the  wills  of  persons  in  Ireland  or  Jamaica, 
and  dying  there,  and  vice  versa  in  this  country,  some 
legacies  being  expressed  in  sterling  money,  others  in 
sums,  without  reference  to  the  nature  of  the  coin  in 
which  they  are  to  be  paid,  the  legacies  are  directed 
here  to  be  computed  according  to  the  (real)  value  of  the 
currency  of  the  country  to  which  the  testator  belonged,  or 
where  the  property  was ;  and  I  apprehend  no  more  was 
done  in  such  cases  than  ascertaining  the  value  of  so 
many  pounds  in  the  current  coin  of  the  country,  and 
paying  that  amount  out  of  the  funds  in  Court.  On  the 
other  hand,  I  do  not  believe  the  Court  have  ever  said 
they  would  not  look  at  the  value  of  the  current  coin  of 
the  country,  but  would  take  it  as  bullion.  At  the  time 
of  Wood's  half-pence  in  Ireland,  whatever  was  their 
actual  worth,  yet  payment  in  England  must  have  been 
according  to  their  nominal  current  value,  not  the  actual 
value.  So  whatever  was  the  current  value  of  the  rupee 
at  the  time  when  this  legacy  ought  to  be  paid,  is  the 
ratio  according  to  which  payment  must  be  made  here 


1  Cockerell  v.  Barber,  16  Ves.  461,  465. 


504  .  CONFLICT    OF   LAWS.  [CH.  VIIL 

in  pounds  sterling.  If  twelve  of  Wood's  half-pence 
were  worth  six  pence  in  this  Court,  six  pence  must  have 
been  the  sum  paid.  And  in  a  payment  in  this  Court 
the  cost  of  remittance  has  nothing  to  do  with  it.  So  if 
the  value  of  30,000  rupees,  at  the  time  the  payment 
ought  to  have  been  made  in  India,  was  ^10,000,  that 
is  the  sum  to  be  paid  here,  without  any  consideration 
as  to  the  expense  of  remittance."  And  he  accordingly 
directed  the  master  to  review  his  report,  and  the  lega- 
cies to  be  paid,  according  to  the  current  value  of  the 
Sicca  rupee  in  Calcutta.^ 

§  313.  In  considering  this  decision,  it  is  material  to 
observe,  that  the  will  was  made  in  India,  and,  of  course, 
the  legacy  payable  there  ;  and  the  testator  died  in  Eng- 
land, leaving  personal  assets  in  both  countries.  Under 
these  circumstances,  the  legatee  was  not  compellable  to 
resort  to  England  for  payment  of  the  legacy ;  but  he 
elected  of  his  own  mere  choice  to  receive  it  there.  He 
might  have  resorted  to  India,  if  he  had  pleased  ;  ^  and  if 
so,  he  would  have  been  entitled  to  the  exact  amount  of 
30,000  Sicca  rupees,  according  to  their  current  value 
there.  He  ought  not,  then,  by  resorting  to  a  court  in 
England,  to  oblige  the  estate  to  bear  the  charge  of  the 
remittance  of  the  amount  to  England,  with  which  it  was 
charged  by  the  master's  report.  Nor  ought  the  estate, 
upon  his  mere  election  to  receive  the  amount  in  Eng- 
land, to  pay  for  the  remittance  of  the  same  from  England 
to  India.  The  decree  of  the  Court  was,  therefore,  mani- 
festly right,  and  consistent  with  the  principles  above 


1  Cockerell  v.  Barber,  16  Ves.  461,  465. 

S.  See  Bourke  v.  Ricketts,  10  Ves.  332,  and  Raithby's  Notes  to  Rane- 
lagh  V.  Champant,  2  Vern.  395  ;  Saunders  v.  Drake,  2  Atk.  R.  4G6  ;  Sta- 
pleton  V.  Conway,  1  Ves.  427. 


CH.  VIII.]  FOREIGN    CONTRACTS.  505 

stated.  The  language  of  the  Court,  however,  does  not 
seem  to  put  the  case  upon  this  clear  ground ;  but  to  put  it 
upon  the  ground,  that  the  value,  at  the  par  of  exchange, 
(not  indeed  the  nominal,  hut  the  real  par,)  without  any 
reference  to  the  place  of  payment,  or  of  remittance, 
was,  in  all  cases,  the  true  rule.  It  admits,  however,  of 
some  doubt,  whether  the  Court  intended  to  make  so 
general  an  application  of  its  language,  and  did  not  in- 
tend to  restrain  it  to  the  circumstances  of  the  particular 
case.  Suppose  the  executor  in  India  had  remitted  all 
the  funds  to  England,  and  had  become  domiciled  there, 
and  the  legatee  had  always  lived  in  India;  would  not 
the  latter,  having  no  other  means  of  getting  payment 
but  by  a  suit  in  England,  have  been  entitled  to  the 
charge  of  remittance  to  India?  Without  expressing 
any  opinion  upon  the  subject,  it  may,  perhaps,  be 
thought  worthy  of  further  consideration.  Some  of  the 
cases,^  already  cited,  are  certainly  at  variance  with  this 
decision,  if  it  is  to  be  deemed  to  assert  a  doctrine  of 
universal  application.^ 


1  Scott  V.  Bevan,  2  Barn.  &  Adolp.  78.  See  also  Delegal  v.  Naylor, 
7  Bing.  R.  460,  which  apparently  supports  the  rule  in  Scott  v.  Bevan,  and 
ante,  ^  308,  309,  311,  311  a. 

2  In  the  case  of  mixed  money,  in  Sir  John  Davies's  Reports  [28,]  48, 
there  is  a  curious  discussion,  as  to  the  nature  and  changes  of  English  cur- 
rency. A  bond  was  given  in  England  for  the  payment  of  "  £100  sterling, 
current  and  lawful  money  of  England,"  to  be  paid  in  Dublin,  Ireland; 
and  between  the  time  of  giving  the  bond,  and  its  becoming  due.  Queen 
Elizabeth,  by  proclamation,  recalled  the  existing  currency  in  Ireland,  and 
issued  a  new  debased  coinage,  (called  mixed  money,)  declaring  it  to  be 
the  lawful  currency  in  Ireland.  A  tender  was  made  in  this  debased  coin, 
or  mixed  coin,  in  Dublin,  in  payment  of  the  bond.  The  question,  before 
the  Privy  Council  of  Ireland,  was,  whether  the  tender  was  good,  or  ought 
to  have  been  in  currency,  or  value,  equal  to  the  current  lawful  money,  then 
current  in  England.  The  Court  held  the  tender  good  ;  first,  because  the 
mixed  money  was  current  lawful  of  England,  Ireland  being  within  the 

CONFL,  43 


/^ 


506  CONFLICT    OF    LAWS.  [CH.  VIIL 

§  313  a.  The  question  touching  the  effect  of  a  depre- 
ciation of  the  currency  between  the  time  when  the  debt 
is  contracted,  or  it  becomes  due,  and  the  subsequent 
payment  thereof,  which  was  hinted  at  in  the  preceding 
case,  has  since  arisen  in  a  more  direct  and  solemn 
form,  and  undergone  no  inconsiderable  discussion.  The 
French  government,  during  the  war  between  England 
and  France,  had  confiscated  a  debt,  due  from  a  French 
subject  to  a  British  subject;  and  subsequently  an 
indemnity  was  stipulated  for,  on  the  part  of  the  French 
government ;  and,  there  having  been  a  great  deprecia- 
tion of  the  French  currency  after  the  time  when  the 
debt  Avas  confiscated,  the  question  arose,  whether  the 
debt  was  to  be  calculated  at  the  value  of  the  currency 
at  the  time,  when  the  confiscation  took  place,  or  subse- 
quently ;  and  it  was  held,  that  it  ought  to  be  calculated 
according  to  the  value  at  the  time  of  the  confiscation. 
On  that  occasion,  the  case  in  Sir  John  Davies's  Reports^ 
already    alluded   to,^  was   referred  to,  as  well  as  the 


sovereignty  of  the  British  crown  ;  and  secondly,  because  the  payment  being- 
to  be  in  Dublin,  it  could  be  made  in  no  other  currency,  than  the  existing 
currency  of  Ireland,  which  was  the  mixed  money.  The  Court  do  not 
seem  to  have  considered,  that  the  true  value  of  the  English  current  money 
might,  if  that  was  required  by  the  bond,  have  been  paid  in  Irish  currency, 
though  debased,  by  adding  so  much  more,  as  would  bring  it  to  the  par. 
And  it  is  extremely  difficult  to  conceive,  how  a  payment  of  current  lawful 
money  of  England  could  be  interpreted  to  mean  current,  or  lawful  money 
of  Ireland,  when  the  currency  of  each  kingdom  was  different,  and  the 
royal  proclamation  made  a  distinction  between  them,  the  mixed  money 
being  declared  the  lawful  currency  of  Ireland  only.  Perhaps  the  desire  to 
yield  to  the  royal  prerogative  of  the  Queen  a  submissive  obedience,  as  to 
all  payments  in  Ireland,  may  account  for  a  decision  so  little  consonant  with 
the  principles  of  law  in  modern  times.  See  also  the  comments  on  this 
case  in  the  case  of  Pilkington  v.  Commissioners  for  Claims,  2  Knapp,  R. 
18  lo  21  ;  S.  C.  cited  2  Bligh,  R.  98,  note.  See  Kearney  v.  King,  2  Barn. 
&  Aid.  301 ;  Sprowle  v.  Legg,  I  Barn.  &  Cress.  IG. 
1  Ante,  §  312,  313,  note  2. 


CH.  VIII.]  FOREIGN    CONTRACTS.  507 

opinions  of  foreign  jurists  on  the  same  subject ;  and  Sir 
William  Grant,  in  delivering  the  ophiion  of  the  Court, 
said:  "'Great  part  of  the  argument  at  the  bar  would 
undoubtedly  go  to  show,  that  the  Commissioners  have 
acted  wrong  in  throwing  that  loss  upon  the  French 
government  in  any  case  j  for  they  resemble  it  to  the 
case  of  depreciation  of  currency,  happening  between  the 
time  that  a  debt  is  contracted,  and  the  time  that  it  is 
paid ;  and  they  have  quoted  authorities  for  the  purpose 
of  showing,  that  in  such  case  the  loss  must  be  borne  by 
the  creditor,  and  not  by  the  debtor.  That  point  it  is 
unnecessary  for  the  present  purpose  to  consider,  though 
Vinnius,  whose  authority  was  quoted  the  other  day, 
certainly  comes  to  a  conclusion  directly  at  variance 
with  the  decision  in  Sir  John  Davies's  Reports.  He 
takes  the  distinction,  that  if,  between  the  time  of  con- 
tracting the  debt  and  the  time  of  its  payment,  the  cur- 
rency of  the  country  is  depreciated  by  the  State,  that 
is  to  say,  lowered  in  its  intrinsic  goodness,  as  if  there 
were  a  greater  proportion  of  alloy  put  into  a  guinea  or 
a  shilling,  the  debtor  should  not  liberate  himself  by 
paying  the  nominal  amount  of  his  debt  in  the  debased 
money;  that  is,  he  may  pay  in' the  debased  money, 
being  the  current  coin,  but  he  must  pay  so  much  more, 
as  would  make  it  equal  to  the  sum  he  borrowed.  But 
he  says,  if  the  nominal  value  of  the  currency,  leaving 
it  unadulterated,  were  to  be  increased,  as  if  they  were 
to  make  the  guinea  pass  for  SO-s.,  the  debtor  may  liber- 
ate himself  from  a  debt  of  1/.  10-v.  by  paying  a  guhiea, 
although  he  had  borrowed  the  guinea,  when  it  was  but 
worth  21.S.  I  have  said  it  is  unnecessary  to  consider 
whether  the  conclusion  drawn  by  Vinnius,  or  the  deci- 
sion in  Davies's  Reports,  be  the  correct  one  ;  for  we 
think  this  has  no  analogy  to  the  case  of  creditor  and 


508  CONFLICT    OF   LAWS.  [CH.  VIIL 

"debtor.  There  is  a  wrong  act  done  by  the  French  go- 
vernment ;  then  they  are  to  undo  that  wrong  act,  and 
to  put  the  party  in  the  same  situation  as  if  they  never 
had  done  it.  It  is  assumed  to  be  a  wrong  act,  not  only 
in  the  treaty,  but  in  the  repealing  decree.  They  justify 
it  only  with  reference  to  that  which,  as  to  this  coun- 
try, has  a  false  foundation ;  namely,  on  the  ground  of 
what  other  governments  had  done  towards  them,  they 
having  confiscated  the  property  of  French  subjects  ; 
therefore,  they  say,  we  thought  ourselves  justified  at 
the  time  in  retaliating  upon  the  subjects  of  this  coun- 
try. That  being  destitute  of  foundation  as  to  this 
country,  the  Republic  themselves,  in  effect,  confess 
that  no  such  decree  ought  to  have  been  made,  as  it 
affected  the  subjects  of  this  country.  Therefore  it  is 
not  merely  the  case  of  a  debtor  paying  a  debt  at  the 
day  it  falls  due ;  but  it  is  the  case  of  a  wrongdoer, 
who  must  undo,  and  completely  undo,  the  wrongful  act 
he  has  done  ;  and  if  he  has  received  the  assignats  at 
the  value  of  50(7.,  he  does  not  make  compensation  by 
returning  an  assignat,  which  is  only  worth  20d. ;  he 
must  make  up  the  difference  between  the  value  of  the 
assignat  at  difierent  periods.  And  that  is  the  case  stat- 
ed by  Sir  John  Davies,  where  Restitutio  in  integrum  is 
stated.  He  says,  two  cases  were  put  by  the  Judges, 
who  were  called  to  the  assistance  of  the  Privy  Council, 
although  they  were  not  positively  and  formally  resolved. 
He  says,  it  is  said  if  a  man  upon  marriage  receive 
1,000/.  as  a  portion  with  his  wife,  paid  in  silver  money, 
and  the  marriage  is  dissolved  camd  iwcccont nidus,  so 
that  the  portion  is  to  be  restored,  it  must  be  restored  in 
equal  good  silver  money,  though  the  State  shall  have 
depreciated  the  currency  in  the  mean  time.  So,  if  a 
man  recover  100/.  damages,  and  he  levies  that  in  good 


CH.  VIII.]  FOREIGN    CONTRACTS.  509 

silver  money,  and  that  judgment  is  afterwards  revised, 
by  which  the  party  is  put  to  restore  back  all  he  has 
received,  the  judgment-creditor  cannot  liberate  himself 
by  merely  restoring  100/.  in  the  debased  currency  of 
the  time ;  but  he  must  give  the  very  same  currency 
that  he  had  received.  That  proceeds  upon  the  princi- 
ple, that  if  the  act  is  be  undone,  it  must  be  completely 
undone,  and  the  party  is  to  be  restored  to  the  situation 
in  which  he  was  at  the  time  the  act  to  be  undone  took 
place.  Upon  that  principle,  therefore,  undoubtedly  the 
French  Government,  by  restoring  assignats  at  the  end 
of  13  months,  did  not  put  the  party  in  the  same  situa- 
tion in  which  he  was  when  they  took  from  him  assignats 
that  were  of  a  very  different  value.  We  have  said, 
that  as  this  point  is  not  directly  or  immediately  before 
us,  it  can  make  no  part  of  our  decree.  At  the  same 
time,  it  may  not  perhaps  have  been  without  some  uti- 
lity to  have  given  an  opinion  upon  it,  inasmuch  as  it 
was  argued  and  discussed  at  the  bar.  And  w^e  think, 
therefore,  the  Commissioners  have  proceeded  on  a  per- 
fectly right  principle  in  those  cases,  in  which  we  un- 
derstand they  have  made  an  allowance  for  the  deprecia- 
tion of  paper  money ;  and  considering  that  this  case 
does  not  differ  from  those  in  which  they  have  made 
that  allowance,  we  are  of  opinion  that  the  claimants 
ought  to  have  the  same  equity  administered  to  them  in 
remunerating  them  for  the  loss  they  have  sustained."  ^ 

§  313  h.  The  opinions  of  Vinnius  and  Pothier,  allud- 
ed to  in  the  opinion  of  Sir  William  Grant,  fully  confirm 
his  statements.  Vinnius  is  of  opinion  that  the  value 
of  the  money  at  the  time  when  it  ought  to  be  paid,  is 


1  Pilkington  u.  Commissioners  for  Claims,  2  Knapp,  R.  17  to  21. 
43* 


510  CONFLICT    OF    LAWS.  [CH.  VIIL 

the  ^alue  which  is  to  be  allowed  to  the  creditor.  Of 
the  same  opinion,  he  adds,  are  Bartolus,  and.Baldus, 
and  De  Castro,  and  indeed  of  jurists  generally,  with 
the  exception  of  Dumoulin,  and  Hotomannus,  and  Do- 
nellus,  who  think  the  value  at  the  time  of  making  the 
contract  ought  to  govern.  Hence,  after  having  dis- 
cussed the  principle,  Vinnius  says,  in  conformity  with 
the  opinions  of  the  former  jurists;  Hoc  aidem  fiinda- 
mcnio  iiodto,  mjiddem  ncutri  contraJientiiim  injuriam  fieri 
volitmiis,  ita  definiendum  videtur,  tit  si  honitas  monetce  intrin- 
seca  midata  sit,  tempus  contractus^  si  eodrinseca,  id  est  va- 
lor impositiiius,  tempus  solutionis  in  solutione  facienday  spcc- 
tari  debeat}     Pothier  holds  the  opposite   opinion,  and 


1  Vinnius,  ad  Inslit.  Lib.  3,  tit.  15,  Textus,  De  Mutuo,  Comra.  n.  12, 
p.  599,  edit.  1726  ;  Id.  p.  664,  edit.  1777,  Lugduni.  The  whole  passage 
deserves  to  be  cited.  Atque  hinc  pendet  decisio  nobilissimajquEestionis,  si 
post  contractum  seslimatio  nummorum  creveret  aut  decreverit,  utrum  in 
solutione  facienda  spectare  oporteat  valorem,  quern  habebant  tempore  con- 
tractus, an  qui  nunc  est  tenfipore  solutionis  :  inlellige  si  nihil,  de  ea  re  ex- 
presse  dictum  sit,  neque  mora  intervenerit.  Molinaeus,  Hotomannus,  Do- 
nellus  contendunt,  tempus  contractus  inspiciendum  esse,  id  est,  ea  aestima- 
tione  nummos  reddendos,  non  quas  nunc  est,  sed  quae  initio  fuit,  cum 
dabantur.  Nimirum  nihil  illi  in  pecunia  numerata  praeter  aestimationem 
considerandum  putant,  totamque  nummi  bonitatem  in  hac  ipsaaestimatione 
consislere  :  ac  proinde  creditori  non  I'acere  injuriam,  qui  eandem  aestima- 
tionem, quam  accepit,  reddit  :  tantum  enim  reddere  eum,  quantum  accepit, 
quod  ad  solutionem  rautui  sit  satis.  Itaque  secundum  horum  sententiam, 
si  100.  aurei  mutuo  dati  sint,  cum  aureus  valebat  asses  50.  reddantur  au- 
tem,  cum  singuli  valent  asses  55.  debitor  reddens  creditori  aureos  90.  aut 
in  singulos  aureos  50.  asses  reddit,  quantum  accepit,  et  liberatur  :  et  vicis- 
sim  si  imminuta  sit  ad  eundem  modum  accepit,  et  liberatur  :  et  vicissim  si 
imminuta  sit  ad  eundem  modum  aureorum  aestimatio,  non  liberatur,  nisi 
reddat  aureos  110.  aut  in  singulos  aureos  asses  55.  Bartolus  vero  (in  I. 
Paulus.  101.  de  solut.)  Baldus  (in  1.  res  in  dotem,  24.  de  jur.  dot.) 
Castro,  in  lib,  3,  de  reb.  cred.)  et  DD.  coram,  ut  videre  est  apud  Boer, 
decis.  327.  contra  consent,  spectandum  esse  in  proposito  tempus  solutionis, 
id  est,  aucto  vel  deminuto  nummorum  valore,  ea  aestiraatione  reddi  eos 
oportere,  non  quae  tunc  fuit,  cum  dabantur,  sed  quae  nunc  est,  cum  solvun- 
tur  ;  nequo  aliud  statui  posse  sine  creditoris  aut  debitoris  injuria.     Quae 


CH.  VIII.]  FOREIGN    CONTRACTS.  511 

says  :  "  It  remains  to  be  observed,  in  regard  to  the 
price,  that  it  may  be  rendered  in  a  money  different  from 
that  in  which  it  is  paid.     If  it  is  paid  to  the  seller  in 


sententia,  ut  mihi  videtur,  et  verior  et  aquior  est.  Nam  quod  contraris 
sentential  auctores  unicunn  urgent,  in  nummis  non  niateriac,  sed  solius 
a3stimationis  imposiliEC  atque  externaj,  quam  ob  id  vulgo  extrinsecann  num- 
mi  bonitatem  vocant,  rationem  duci,  nuramumque  nihil  aliud  esse,  quam 
quod  publice  valet,  vereor,  ut  simpliciter  verum  sit.  Utique  enim  mate- 
ria numismatis  fundamentura  est  et  causa  valoris  :  quippe  qui  variatur  pro 
diversitate  maleriae :  oportetque  valorem  hunc  justa  aliqua  proportione 
materise  respondere  :  neque  in  bene  constituta  repub.  nummo  ea  ajstimatio 
imponi  debet,  quae  pretium  materije,  ex  qua  cuditur,  superat,  aut  superet 
ultra  modum  expensarum,  quaj  in  signanda  pecunia  fiunt  ;  quod  ad  singu- 
larum  specierum  valorem  parum  addere  potest.  Sed  hoc  ad  actus  et  praes- 
tationes  privatorum  non  pertinet.  Illud  pertinet,  quod  si  dicimus,  creditis 
nummis  nihil  prseter  aestimationem  eorum  creditum  intelligi,  necessario 
sequitur,  creditorem  teneri  in  alia  forma  aut  materia  nummos  accipere  con- 
tra definitionem  Pauli  in  d.  1.  99.  de  solut.  etiamsi  damnum  ex  eo  passu- 
rus  sit :  nam,  qui  recipit,  quod  credidit,  nihil  habet,  quod  conqueratur. 
Sequitur  et  hoc,  si  contingat  mutari  nummorum  bonitatem  intrinsecam,  id 
est,  si  valore  veteri  retentio  percutiantur  novi  nummi  ex  deteriore  materia, 
quam  ex  qua  cusi,  qui  dati  sunt,  puta,  si  qui  dali  sunt,  cusi  fuerint  ex  puro 
auro,  postea  alii  feriantur  ex  auro  minus  puro  et  mixto  ex  cere,  debitorem 
restituendo  tot  mixtos  et  contaminatos,  quot  ille  puros  accepit,  liberari 
cum  insigni  injuria  creditoris  :  et  contra  interpp.  pene  omnium  doctrinam, 
qui  hoc  casu  solutionem  faciendam  esse  statuunt  ad  valorem  intrinsecum 
monetae,  qui  currebat  tempore  contractus,  testibus  Gail.  2,  obs.  73,  n.  6 
and  7.  Borcholt.  de  feud,  ad  cap.  un.  quae  sunt  regal,  num.  G2.  Illud 
enim  maxime  in  hac  disputatione  considerandum  est,  quoniam  hie  finis 
nummi  principalis  est,  ut  serviat  rebus  necessariis  comparandis,  auctore 
Aristotele  1,  Polit.  G.  quod  mutata  monetae  bonitate  sive  extrinseca,  sive 
intrinseca,  pretia  rerura  omnium  mutentur,  et  pro  mode  auctae  aut  immi- 
nutae  bonitatis  nummorum  crescant  aut  decrescant :  quod  ipsa  docet  ex- 
perientia  :  eoque  facit  1.  2.  C.  de  vet.  num  pot.  lib.  II.  Crescunt  rerum  pre- 
tia, si  deterior  materia  electa,  aut  manente  eadem  materia  valor  auctus  sit: 
decrescunt  elcetu  materias  melioris,  aut  si  eadem  bonitate  materia;  manente 
valor  imminulis  fuerit.  Fallitur  enim  imperitum  vulgus,  dum  sibi  persua- 
del,  ex  augmento  valoris  aurei  aliquid  sibi  lucri  accedere.  Hoc  autem 
fundamento  posito,  siquidem  neutri  contrahentium  injuriam  fieri  volumus, 
ita  definiendum  videtur,  ut  si  bonitas  monetas  intrinseca  mutata  sit,  tempus 
contractus,  si  extrinseca,  id  est,  valor  imposititius,  tempus  solutionis  in 
solutione  facienda  spectari  debeat.     Atque  ita  sacpissime  judicatum  est. 


512  CONFLICT    OF   LAWS.  [CH.  VIII. 

gold,  the  seller  may  repay  it  in  pieces  of  silver,  or 
vice  versa.  In  like  manner,  though  subsequent  to  the 
payment  of  the  price,  the  pieces  in  which  it  is  paid  are 
increased  or  diminished  in  value  ;  though  they  are  dis- 
credited, and  at  the  time  of  their  redemption  their 
place  is  supplied  by  new  ones  of  better  or  worse  alloy ; 
the  seller,  who  exercises  the  redemption,  ought  to  repay 
in  money  which  is  current  at  the  time  he  redeems,  the 
same  sum  or  quantity  which  he  received  in  payment, 
and  nothing  more  nor  less.  The  reason  is,  that,  in 
money,  we  do  not  regard  the  coins  which  constitute  it, 
but  only  the  value  which  the  sovereign  has  been  pleased 
that  they  shall  signify ;  Eaqiie  materia  forma  piiblica 
percussa,  usum  dominiumque  non  tam  ex  substantia  prcebet, 
quam  ex  quantitate ;  D.  18,  1,  1.  When  the  price  is 
paid,  the  seller  is  not  considered  to  receive  the  particu- 
lar pieces,  so  much  as  the  sum  or  value  which  they  sig- 
nify ;  and,  consequently  he  ought  to  repay,  and  it  is 
sufficient  for  him  to  repay,  the  same  sum  or  value  in 
pieces  which  are  current,  and  which  have  the  signs  au- 
thorized by  the  prince  to  signify  that  value.  This  prin- 
ciple being  well  established  in  our  French  practice,  it  is 
sufficient  merely  to  state  it.  It  cuts  off  all  the  ques- 
tions made  by  the  Doctors  concerning  the  changes  of 
money."  ^ 

§  314.  Negotiable  instruments  often  present  ques- 
tions of  a  like  mixed  nature.^  Thus,  suppose  a  nego- 
tiable bill  of  exchange  is  drawn  in  Massachusetts  on 
England,  and  is  indorsed  in  New  York,  and  again  by 


1  Pothier,  Traile  du  Contrat  de  Vente,  n.  416.  I  quote  from  Mr.  Cush- 
ing's  excellent  Translation,  n.  416,  p.  264,  265.  See  Pardessus,  Tom.  5, 
art.  1495,  p.  269,  270,  271. 

2  See  post,  ^  344,  353  to  361. 


CH.  VIII.]  FOREIGN    CONTRACTS.  513 

the  first  indorsee  in  Pennsylvania,  and  by  the  second 
in  Maryland,  and  the  bill  is  dishonored  ;  what  damages 
will  the  holder  be  entitled  to  ?  The  law  as  to  damages 
in  these  States  is  different.  In  Massachusetts  it  is  ten 
per  cent.,  in  New  York  and  Pennsylvania  twenty  per 
cent.,  and  in  Maryland  fifteen  per  cent.^  What  rule 
then  is  to  govern  ?  The  answer  is,  that,  in  each  case, 
the  Lex  loci  contradus.  The  drawer  is  liable  on  the 
bill  according  to  the  law  of  the  place  where  the  bill 
was  drawn ;  and  the  successive  indorsers  are  liable  on 
the  bill  according  to  the  law  of  the  place  of  their  in- 
dorsement, every  indorsement  being  treated  as  a  new 
and  substantive  contract.-  The  consefj[uence  is,  that 
the  indorser  may  render  himself  liable  upon  a  dishonor 
of  the  bill,  for  a  much  higher  rate  of  damages,  than  he 
can  recover  from  the  drawer.  But  this  results  from 
his  ow^n  voluntary  contract  ;  and  not  from  any  collison 
of  rights  arising  from  the  nature  of  the  original  con- 
tract.^ 


1  3  Kent,  Coram.  Lect.  44,  p.  116  to  p.  120,  3d  edit. 

2  Ante,  ^  307;  post,  §  317  ;  Powers  v.  Lynch,  3  Mass.  R.  77  ;  Prentiss 
V.  Savage,  13  Mass.  R.  20,  23,  24  ;  Slacum  v.  Pomeroy,  6  Cranch,  221  ; 
Depau  V.  Humphreys,  20  Martin,  R.  1,  14,  15;  Hicks  v.  Brown, 
12  Johns.  R.  142;  Bayley  on  Bills,  ch.  A.  p.  28,  Phillips  &  Sewall's 
Edition;  Trimbey  d.  Vignier,  1  Bing.  R.  151,  159,  160;  ante,  §267; 
post,  1^  316  a,  1^  353  to  361  ;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt. 
2,  ch.  20,  p.  771  to  p.  774. 

3  Pardessus  has  discussed  this  matter  at  large.  He  adopts  the  general 
doctrine  here  stated,  that  the  law  of  the  place  of  each  indorsement  is  to 
govern,  as  each  indorsement  constitutes  a  new  contract  between  the  imme- 
diate parties.  And  he  applies  the  same  rule  to  damages  ;  and  says,  that, 
if  the  law  of  the  place,  where  a  bill  of  exchange  is  drawn,  admits  of  the 
accumulation  of  costs  and  charges  on  account  of  reexchanges,  (as  is  the 
law  of  some  countries,)  in  such  a  case  each  successive  indorser  may  be- 
come liable  to  the  payment  of  such  successive  accumulations,  if  allowed 
by  the  law  of  the  place,  where  they  made  their  indorsement.  He  seems, 
indeed,  to  press  his  doctrine  farther,  and  to  hold,  that,  if  the  law  of  the 


514  CONFLICT    OF   LAWS.  [CH.  VIIL 

§  315.  It  has  sometimes  been  suggested,  that  this 
doctrine  is  a  departure  from  the  rule,  that  the  law  of  the 
place  of  payment  is  to  govern.^  But,  correctly  con- 
sidered, it  is  entirely  in  conformity  to  the  rule.  The 
drawer  and  indorsers  do  not  contract  to  pay  the  money 
in  the  foreign  place,  on  which  the  bill  is  drawn  j  but 
only  to  guarantee  its  acceptance  and  payment  in  that 
place  by  the  drawee ;  and  in  default  of  such  payment 
they  agree  upon  due  notice  to  reimburse  the  holder,  in 
principal  and  damages,  at  the  place,  where  they  respect- 
ively entered  into  the  contract." 

§  316.  Nor  is  it  any  departure  from  the  rule  to  hold, 
that  the  time  when  the  payment  of  such  a  bill  is  to 
accrue,  is  to  be  according  to  the  law  of  the  place  where 
the  bill  is  payable ;  so  that  the  days  of  grace  (if  any) 
are  to  be  allowed  according  to  the  law  or  custom  where 
the  Bill  is  to  be  accepted  and  paid ;  ^  for  such  is  the 
appropriate  construction  of  the  contract,  according  to 
the  rules  of  law,  and  the  presumed  intention  of  the 
parties.** 

place  of  such  indorsement  does  not  allow  such  accumulation  of  reexchanges, 
but  the  law  of  the  place  where  the  bill  is  drawn  does,  the  indorsers  will 
be  liable  to  pay,  as  the  drawer  would.  But  his  reasoning  does  not  seem 
satisfactory ;  and  it  is  certainly  inconsistent  with  the  acknowledged  doc- 
trines of  the  common  law.  Pardessus,  Droit  Commerc.  art.  1500.  See 
also  Henry  on  Foreign  Laws,  53,  Appx.  239  to  242  ;  3  Kent,  Coram. 
Lect.  44,  p.  115,  3d  edit.  See  Rothschild  v.  Currie,  1  Adolph.  &  Ell. 
N.  R.  43  ;  Shanklin  v.  Cooper,  8  Blackf.  41. 

1  2  Kent,  Comm.  Lect.  39,  p.  459,  460.  3d  edit.  ;  Chitty  on  Bills, 
p.  191  to  p.  194,  8th  edit.  London. 

2  Potter  V.  Brown,  5  East,  R.  123,  130 ;  Dundas  v.  Bowler,  3  McLean, 
400;  Hicks  u.  Brown,  12  Johns.  R.  142;  Powers  v.  Lynch,  3  Mass.  R. 
77  ;  Prentiss  v.  Savage,  13  Mass.  R.  20,  24  ;  Pardessus,  Droit  Comm. 
art  1497. 

3  See  2  Kent,  Comm.  Lect.  39,  p.  459,  460,  3d  edit.  ;  Chitty  on  Bills, 
p.  191,  8th  edit.,  London  ;  Pothier,  Contrat  de  Change,  n.  15,  155  ; 
5  Pardessus,  §  1495;  post,  ^  347,  361. 

4  Mr.  Justice  Martin,  in  Vidal  i'.  Thompson,  11  Martin,  R.  23,  24. 


CH.  VIII.]  FOREIGN    CONTRACTS.  615 

§  316  a.  Another  illustration  of  the  general  doctrine 
may  he  derived  from  the  case  of  negotiable  paper,  as  to 
the  binding  obligation  and  effect  of  a  blank  indorse- 
ment. It  seems,  that  by  the  law  of  France  an  indorse- 
ment in  blank  of  a  promissory  note  does  not  transfer 
the  property  to  the  holder  unless  certain  prescribed 
formalities  are  observed  in  the  indorsement,  such  as  the 
date,  the  consideration,  and  the  name  of  the  party  to 
whose  order  it  is  passed  \  otherwise,  it  is  treated  as  a 
mere  procuration.^  Now,  let  us  suppose  a  note  made 
at  Paris,  payable  to  the  order  of  the  payee,  and  he 
should  there  indorse  the  same  in  blank  without  the 
prescribed  formalities,  and  afterwards  the  holder  should 
sue  the  maker  of  the  note  in  another  country,  as,  for 
example,  in  England,  where  no  such  formalities  are  pre- 
scribed 5  the  question  would  arise,  whether  the  holder 
could  recover  in  such  a  suit  in  an  English  Court  upon 
such  an  indorsement.  It  has  been  held  that  he  can- 
not ;  and  this  decision  seems  to  be  founded  in  the  true 
principles  of  international  jurisprudence  ;  for  it  relates 
not  to  the  form  of  the  remedy  but  to  the  interpretation 
and  obligation  of  the  contract  created  by  the  indorse- 
ment, which  ought  to  be  governed  by  the  law  of  the 
place  of  indorsement." 

§  316  J).  Another  illustration  may  be  derived  from 
the  different  obligations  which  an  indorsement  creates 
in  different  States.  By  the  general  commercial  law,  in 
order  to  entitle  the  indorsee  to  recover  against  any 
antecedent  indorser  upon  a  negotiable  note,  it  is  only 


1  Code  de  Commerce,  art.  137,  138  ;    Trimbey  v.  Vignier,  1  Bing.  N. 
Cas.  151,  158,  159,  160. 

2  Trimbey  r.  Vignier,   1  Bing.  New  Cases,  151,  158,  159,  160;  ante, 
^272. 


516  CONFLICT    OF   LAWS.  [CH.  VIIL 

necessary  tliat  due  demand  should  be  made  upon  the 
maker  of  the  note  at  its  maturity,  and  due  notice  of 
the  dishonor  to  the  indorser.  But  by  the  laws  of  some 
of  the  American  States,  it  is  required,  in  order  to  charge 
an  antecedent  indorser,  that  not  only  due  demand 
should  be  made  and  due  notice  given,  but  that  a  suit 
shall  be  previously  commenced  against  the  maker,  and 
prosecuted  with  effect  in  the  country  where  he  resides ; 
and  then,  if  paj^ment  cannot  be  obtained  from  him 
under  the  judgment,  the  indorsee  may  have  recourse 
to  the  indorser.  In  such  a  case,  it  is  clear,  upon  prin- 
ciple, that  the  indorsement,  as  to  its  legal  effect  and 
obligation,  and  the  duties  of  the  holder  must  be  go- 
verned by  the  law  of  the  place  Avhere  the  indorsement 
is  made.  This  very  point  has  been  recently  decided  in 
a  case  where  a  note  was  made  and  indorsed  in  the 
State  of  Illinois.  On  that  occasion,  Mr.  Chief  Justice 
Shaw,  in  delivering  the  opinion  of  the  Court,  said ; 
"  The  note  declared  on,  being  made  in  Illinois,  both 
parties  residing  there  at  the  time,  and  it  also  being 
indorsed  in  Illinois,  we  think  that  the  contract  created 
by  that  indorsement  must  be  governed  by  the  law  of 
that  State.  The  law  in  question  does  not  affect  the 
remedy,  but  goes  to  create,  limit,  and  modify  the  con- 
tract effected  by  the  fact  of  indorsement.  In  that, 
which  gives  force  and  effect  to  the  contract,  and  im- 
poses restrictions  and  modifications  upon  it,  the  law  of 
the  place  of  contract  must  prevail  when  another  is  not 
looked  to  as  a  place  of  performance.  Suppose  it  were 
shown,  that,  by  the  law  of  Illinois,  the  indorsement  of  a 
note  by  the  payee  merely  transferred  the  legal  interest 
in  the  note  to  the  indorsee,  so  as  to  enable  him  to  sue 
in  his  own  name,  but  imposed  no  conditional  obliga- 
tion on  the  indorser  to  pay ;  it  would  hardly  be  con- 


CH.  VIII.]  FOREIGN   CONTRACTS.  517 

tended,  that  an  action  could  be  brought  here  upon  such 
an  indorsement  if  the  indorser  should  happen  to  be 
found  here,  because  by  our  law  such  an  indorsement,  if 
made  here,  would  render  the  indorser  conditionally 
liable  to  pay  the  note.  By  the  law  of  Illinois,  the  in- 
dorser is  liable  only  after  a  judgment  obtained  against 
the  maker;  and  as  no  such  judgment  appears  to  have 
been  obtained  on  this  note,  the  condition  upon  which 
alone  the  plaintiff  may  sue,  is  not  complied  with,  and 
therefore  the  action  cannot  be  maintained."  ^ 

§  317.  But,  suppose  a  negotiable  note  is  made  in  one 
country,  and  is  payable  there,  and  it  is  afterwards  in- 
dorsed in  another  country,  and  by  the  law  of  the  for- 
mer country  equitable  defences  are  let  in,  in  favor  of 
the  maker,  and  by  the  latter  such  defences  excluded ; 
what  rule  is  to  govern,  in  regard  to  the  holder,  in  a 
suit  against  the  maker  to  recover  the  amount  upon  the 
indorsement  to  him?  The  answer  is,  the  law  of  the 
place,  where  the  note  was  made  ;  for  there  the  maker 
undertook  to  pay ;  and  the  subsequent  negotiation  of 
the  note  did  not  change  his  original  oblig.'ition,  duty, 
or  rights.-  Acceptances  of  bills  are  governed  by  the 
same  principles.  They  are  deemed  contracts  of  accept- 
ance in  the  place,  where  they  are  made,  and  where 
they  are  to  be  performed.^     So  Paul  Voet  lays  down 


1  Williams  V.  Wade,  I  Metcalf,  R.  82,  83. 

2  Ory  V.  Winter,  lf5  Martin,  R.  277  ;  post,  332,  343,  344. 

3  Lewis  V.  Owen,  4  Barn.  &  Aid.  654;  ante,  ^  307;  post,  ^  333,  344, 
345.  If  made  in  one  place  and  accepted  there,  payable  in  another  place, 
the  law  of  the  place  where  the  Bill  is  payable  governs.  Cooper  v.  Earl 
of  Waldegrave,  2  Beavan,  R.  282.  What  bills  are  deemed  foreign  1 
Bills  drawn  in  one  State  payable  in  another  State,  are  deemed  foreign. 
Bleekner  v.  Finley,  2  Peters,  R.  236  ;  Halliday  i'.  McDougal,  22  Wend. 
R.  264,  272  ;  Wells  v.  Whitehead,  15  Wend.  R.  527  ;  Rothschild  v.  Cur- 
rie,  1  Adolp.  &  Ell.  N.  Rep.  43. 

CONFL.  44 


518  CONFLICT    OF  LAWS.  [CH.  VIIL 

the  doctrine.  Quid  si  de  Uteris  Ccimhii  incidat  questio  ; 
qiiis  locus  erit  spedandiis  ?  Is  spedcmdus  est  locus,  ad 
quern  sunt  destincdce,  et  ibidem  acceptaUe.  But,  suppose  a 
negotiable  acceptance,  or  a  negotiable  note,  made  pa}^- 
able  generally,  without  any  specification  of  place ;  what 
law  is  to  govern,  in  case  of  a  negotiation  of  it  by  one 
holder  to  another  in  a  foreign  country,  in  regard  to  the 
acceptor,  or  to  the  maker  ?  Is  it  a  contract  by  them  to 
pay  in  any  place,  where  it  is  negotiated,  so  as  to  be 
deemed  a  contract  of  that  particular  place,  and  govern- 
ed by  its  laws  ?  The  Supreme  Court  of  Massachusetts 
have  held,  that  it  creates  a  debt  payable  anywhere,  b}'- 
the  very  nature  of  the  contract ;  and  it  is  a  promise  to 
whosoever  shall  be  the  holder  of  the  bill  or  note.^  As- 
suming this  to  be  true ;  still  it  does  not  follow,  that  the 
law  of  the  place  of  the  negotiation  is  to  govern;  for 
the  transfer  is  not,  as  to  the  acceptor,  or  the  maker,  a 
new  contract ;  but  it  is  under,  and  a  part  of,  the  origi- 
nal contract,  and  springs  up  from  the  law  of  the  place, 
where  that  contract  was  made.  A  contract  to  pay  ge- 
nerally is  governed  by  the  law  of  the  place,  where  it  is 
made ;  for  the  debt  is  payable  there,  as  well  as  in  ev- 
ery other  place.^     To  bring  a  contract  within  the  gene- 


1  P.  Voet,  de  Statut.  ^  9,  ch.  2,  n.  14,  p.  270,  edit.  1713  ;  Id.  p.  327, 
edit.  1661 ;  post,  ^  346,  note. 

2  Braynard  v.  Marshall,  8  Pick.  Fi.  194  ;  post,  ^  341,  343  to  346. 

3  See  Kearney  u.  King,  2  Barn.  &  Aid.  301  ;  Sprowle  v.  Legge,  1  Barn. 
&  Cres.  16;  ante,  •^  272  a;  post,  ^  329  ;  Don  v.  Lippmann,  5  Clark  & 
Finn.  1,  12,  13.  —  In  this  last  case  a  bill  of  Exchange  was  drawn  and  ac- 
cepted in  Paris  by  a  Scotchman  domiciled  in  Scotland,  and  it  was  payable 
generally.  It  seems,  that,  by  the  law  of  Scotland,  an  acceptance  is  deemed 
payable  at  the  place  of  the  domicil  of  the  acceptor,  at  the  time,  when  it 
becomes  due.  Lord  Brougham  on  this  occasion  said  ;  "It  appears,  that 
in  Scotland,  —  and  it  is  rather  singular,  that  it  should  be  so,  —where  a  bill 
is  accepted  generally,  without  any  particular  place  being  named,  it  shall 


CH.  VIII.]  FOREIGN    CONTRACTS.  619 

ral  rule  of  the  Lex  loci,  it  is  not  necessary,  that  it  should 
be  payable  exclusively  in  the  place  of  its  origin.  If 
payable  everywhere,  then  it  is  governed  by  the  law  of 
the  place,  where  it  is  made ;  for  the  plain  reason,  that 
it  cannot  be  said  to  have  the  law  of  any  other  place  in 
contemplation,  to  govern  its  validity,  its  obligation,  or 
its  interpretation.  All  debts  between  the  original  par- 
ties are  payable  everywhere,  unless  some  special  pro- 
vision 'to  the  contrary  is  made  ;  and,  therefore,  the  rule 
is,  that  debts  have  no  sUus ;  but  accompany  the  credi- 
tor everywhere.^  The  holder,  then,  takes  the  contract 
of  the  acceptor,  or  maker,  as  it  was  originally  made, 
and  as  it  was  in  the  place,  where  it  was  made.  It 
is  there,  that  the  promise  is  made  to  him  to  pay  every- 
where.- 

§  318.  A  case  a  little  more  difficult  in  its  texture  is. 


be  deemed  payable  at  the  place,  at  which  the  acceptor  is  domiciled,  when 
it  becomes  due.  It  becomes  of  some  importance  to  know,  where  the  bills 
were  payable,  because  this  principle,  which  has  been  adopted  of  late  years 
in  many  of  the  Scotch  decisions,  and  towards  which  I  admit  the  great 
leaning  of  the  Scotch  profession  is,  renders  it  material  to  consider, 
whether  this  is  a  Scotch  or  a  foreign  debt.  Yet  sometimes  this  expression 
is  used  in  the  cases  without  affording  any  accuracy  of  description  ;  for 
sometimes  the  debt  is  called  English,  or  French  in  respect  of  the  place, 
where  the  contract  was  made;  sometimes  it  is  the  place  of  the  origin, 
sometimes  of  the  payment  of  the  contract ;  and  sometimes  of  the  domicil 
of  one  of  the  parties.  But  at  all  events  it  becomes  important  to  consider, 
whether  this  was  a  foreign  or  a  Scotch  debt.  In  the  present  case  it  was 
held  most  properly  to  be  a  foreign  debt.  That  is  a  fact  admitted;  it  is 
out  of  all  controversy.  This,  therefore,  must  now^  be  taken  to  be  a  French 
debt;  and  then  the  general  law  is,  that  where  the  acceptance  is  general, 
naming  no  place  of  payment,  the  place  of  payment  shall  be  taken  to  be 
the  place  of  the  contracting  of  the  debt.  I  shall  therefore  deal  with  this 
bill,  as  if  it  was  accepted,  payable  in  Paris." 

1  Blanchardv.  Russell,  13  Mass.  R.  1,G;  Slacumu.  Pomeroy,  GCranch, 
221  ;  post,  ^  329,  362,  399,  400. 

2  Post,  ^  343,  344. 


520  CONFLICT    OF   LAWS.  [CH.   VIII. 

when  a  contract  is  made  in  one  country,  for  payment  of 
money  in  another  country,  and,  by  the  laws  of  the  lat- 
ter, a  stamp  is  required,  to  make  the  contract  valid,  and 
it  is  not  by  those  of  the  former ;  whether  it  is  governed 
by  the  Lex  solutionis,  or  by  the  Lex  loci  contractus,  as  to 
the  stamp.  It  has  been  held,  that  a  stamp  is  not  re- 
quired in  such  a  case  to  give  validity  to  the  contract, 
upon  the  ground  that  an  instrument,  as  to  its  form  and 
solemnities,  is  to  be  governed  by  the  Lex  loci  contractus, 
and  not  by  the  law  of  the  place  of  payment ;  and  that, 
therefore,  a  stamp  is  not  required  by  the  principle.^  On 
that  occasion  the  Court  said  :  "  An  instrument,  as  to  its 
form  and  the  formalities  attending  its  execution,  must 
be  tested  by  the  laws  of  the  place  where  it  is  made ; 
but  the  laws  and  usages  of  the  place  where  the  obliga- 
tion, of  which  it  is  evidence,  is  to  be  fulfilled,  must 
regulate  the  performance.  A  bill  drawn  out  of  London, 
must  be  paid  at  the  expiration  of  the  days  of  grace, 
which  the  laws  and  usages  of  that  place  recognize  ;  but 
need  not  have  those  stamps  which  are  by  law  required 
on  a  bill  drawn  there."  ^ 

§  319.  But  a  case,  more  difficult  to  reconcile  with 
established  principles,  in  its  actual  adjudication,  has 
occurred  in  Massachusetts.  A  bill  of  exchange  was 
drawn  in  Manchester,  in  England,  upon  a  firm  esta- 
blished at  Boston,  in  Massachusetts,  payable  in  London, 
and  was  accepted  at  Manchester  by  one  of  the  firm, 
then  there.     The  bill  was,  therefore,  drawn  in  England, 


1  I\Ir.  Justice  Martin  in  Vidal  v.  Thompson,  11  Martin,  R.  23,  24,  25. 
But  see  ante,  ^  260,  and  note,  ^  262,  262  a  ;  Wynne  v.  Jackson,  2  Rus- 
sell, R.  351  ;  Clegg  v.  Levy,  3  Camp.  R.  166  ;  James  v.  Catherwood, 
3  Dowl.  &  Ryl.  R.  190. 

2  Ibid. 


en.  VIII.]  FOREIGN    CONTRACTS.  521 

accepted  in  England,  and  payable  in  England.  But 
upon  its  dishonor,  it  was  held,  that  it  was  to  be  deemed 
a  bill  accepted  in  Boston ;  because  the  domicil  of  the 
firm  was  there,  and  that  damages  were  recoverable  of 
10  per  cent.,  as  they  would  be  upon  a  like  bill  accepted 
in  Boston.^  There  was  nothing  upon  the  face  of  the 
bill,  that  alluded  to  an  acceptance  in  Boston,  and 
nothing  in  the  circumstances,  that  pointed  in  that  direc- 
tion. It  was  certainly  competent  for  the  firm  to  con- 
tract in  England,  and  to  accept  in  England ;  and, 
beyond  all  question,  if  the  bill  had  been  drawn  solely 
on  the  person  who  accepted  it,  the  acceptance  must 
have  been  deemed  to  be  made  in  England,  notwith- 
standing his  domicil  was  in  Boston.  Is  there  any  dif- 
ference between  an  acceptance  by  a  firm,  and  an 
acceptance  by  a  single  person  ?  Is  not  the  general 
principle  of  law  that  which  is  afiirmed  by  Casaregis, 
that  a  contract  or  acceptance  is  to  be  deemed  made, 
where  the  contract  or  acceptance  is  perfected  ;  Eo  loci, 
quo  iiltimus  in  contnihendo  assentihir  ?  ^  It  has  certainly 
been  put  upon  that  ground  in  many  modern  authorities.^ 
And,  therefore,  if  the  acceptor  be  an  accommodation 
acceptor  in  one  country,  payments  made  by  him  of  the 


1  Grimshaw  v.  Bender,  6  Mass.  R.  157. — The  case  of  Acebal  v.  Levy, 
10  Bing.  R.  376,  379,  seems  to  have  involved  a  question  very  nearly  the 
same,  arising  under  the  Statute  of  Frauds  of  England,  the  contract  hav- 
ing been  made  in  Gijon,  in  Spain,  for  the  delivery  of  the  goods  purchased 
in  England.  The  Court  and  bar  seem  to  have  thought,  that  the  contract 
was  to  be  governed  by  the  English  Statute  of  Frauds,  although  made  in 
Spain.  See  ante,  ^  262  a,  and  note.  See  also  Cooper  v.  Earl  Walde- 
grave,  2  Beavan,  R.  282. 

2  Casaregis,  Disc.  179,  n.  1  ;  ante,  ^  285. 

3  Boyce  V.  Edwards,  4  Peters,  R.  Ill  ;  P.  Voet,  U.  Statut.  ^  9,  ch.  2, 
§  14.  See  also  McCandish  v.  Gruger,  2Bay,  R.  377  ;  Bainr.  Ackworth, 
1  S.  Car.  R.  107 ;  Lewis  v.  Owen,  4  B.  &  Aid.  654. 

44* 


522  CONFLICT    OF    LAWS.  [CH.  VIII. 

bills  drawn  by  the  drawer  in  a  foreign  country,  will  be 
deemed  payments  under  a  contract  made  with  the 
drawer  in  the  place  of  acceptance  and  payment.^ 

§  320.  The  doctrine  maintained  in  Massachusetts,  in 
this  last  case,  is  directly  in  conflict  with  that  maintained 
under  similar  circumstances  by  the  Supreme  Court  of 
New  York.  The  latter  Court  has  held,  that  the  bill, 
having  been  drawn  in  England,  and  made  payable 
there,  and  accepted  there,  it  was  to  be  treated  as  an 
English  contract ;  and  that  the  English  interest  of  five 
per  cent,  only  was  to  be  allowed  for  the  delay  of  pay- 
ment.^ This  decision,  being  in  entire  harmony  with  the 
general  principles  on  this  subject,  will  probably  obtain 
general  credit  in  the  commercial  world.^ 

§  320  a.  Many  other  cases  might  easily  be  put,  to 
illustrate  the  law  in  relation  to  the  conflict  of  the  laws 
of  different  countries  in  cases  of  contract.  In  some 
countries  there  are  limited  or  special  partnerships, 
called  in  France  partnerships  in  commandite.  In  these 
partnerships  the  contract  is  between  one  or  more  part- 
ners, who  are  jointly  and  severally  responsible  for  the 
whole  contracts  and  orders  of  the  partnership,  and  one 
or  more  partners,  who  merely  furnish  a  particular  amount 
of  funds,  and  are  responsible  only  to  the  amount  of  such 
funds,  and  who  are  called  commandatcdres,  or  partners  in 
commandite}  Similar  limited  partnerships  are  also  au- 
thorized in  some  of  the  American  States.*"     Now,  let  us 


1  Lewis  V.  Owen,  4  B.  &  Aid.  G54. 

2  Foden  v.  Thorp,  4  Johns.  R.  183  ;  Frazier  v.  Warfield,  9  Smedes  & 
Marshall,  220. 

3  See  Bayley  on  Bills,  (5th  edit.)  ch.  A.  p.  72  to  p.  86,  Phillips  &  Se- 
wall's  N.  edit. 

4  Code  of  Commerce  of  France,  art.  23  to  art.  37. 

[5  Whether  such  a  partnership  is  recognized  by  the  present  law  of  Eng- 


CH.  VIII.]  FOREIGN    CONTRACTS.  523 

suppose  an  order  given  by  the  general  partner  in  such 
a  firm  in  one  of  such  States,  upon  a  house  in  England, 
for  the  purchase  of  goods  there  ;  and  they  were  accord- 
ingly purchased  in  England  on  the  credit  of  the  firm. 
If  the  partnership  became  insolvent,  the  question  might 
then  arise,  whether  the  partner  in  commandite  was  liable 
to  pay  for  the  goods  beyond  the  amount  of  the  funds 
which  he  had  contributed,  or  was  bound  to  contribute, 
for  the  partnership.  That  question  might  essentially 
depend  upon  another,  whether  the  contract  is  to  be 
treated  as  made  in  the  American  States,  where  the  part- 
nership was  established,  or  in  England,  where  the  con- 
tract was  consummated.  And  it  might  also  be  import- 
ant in  the  case,  whether  the  seller  knew  that  the  part- 
nership Avas  so  limited  or  not.  No  point  of  this  sort 
has  as  yet  arisen  for  decision  ;  and  therefore  it  is  left 
for  the  more  full  consideration  of  those  who  may  be 
called  upon  to  examine  it  in  the  case  of  a  judicial  con- 
troversy.^ 

§  321.  In  stating  the  foregoing  rules,  we  have  been 
necessarily  led  to  the  consideration  of  many  of  what  are 
properly  deemed  the  effects  of  contracts,  which,  like  the 
validity  of  contracts,  are  dependent  upon,  and  are  to  be 
governed  by,  the  Zex  loci  contractus.  These  effects  are  ; 
the  right  conferred  on  the  party  for  whose  benefit  the 
contract  is  made  ;  the  correspondent  duty  of  the  other 
party  to  fulfil  it ;  the  right  of  action,  which  arises  from 
the  non-fulfilment  of  it ;  and  the  consequential  right  to 
interest  or  damages,  for  the  injury  done  by  such  non- 


land,  see  an  able  article  in  the  London  Law  Mag.,  Feb.,  1832,  No.  94, 
p.  50,  art.  v.] 

1  Ante,  ^  285  to  287. 


524  CONFLICT    OF   LAWS.  [CH.  VIH. 

fulfilment,  belonging  to  the  injured  party .1  The  man- 
ner, in  which  remedies  are  to  be  administered,  will  fall 
under  another  and  distinct  head.^ 

§  322.  But  there  are  some  other  effects,  which  may 
be  deemed  accompaniments,  effects,  or  incidents  of  con- 
tracts, whichrnay  here  deserve  a  passing  notice.  They 
are  properly  collateral  to  them,  and  arise  by  operation 
of  law,  or  by  the  act  of  the  parties.  Among  these  may 
be  placed  the  liability  of  partners  and  part  owners  for 
partnership  debts.  If,  by  the  law  of  the  place,  where 
the  contract  is  made,  they  would  be  liable  in  soUdo, 
although  by  the  law  of  the  domicil  of  the  partnership, 
they  might  be  liable  only  for  a  proportionate  share,  the 
law  of  the  former  will  follow  the  debt  everywhere  ;  or 
in  other  words,  the  effect  of  the  Lex  loci  of  the  contract 
upon  the  liability  of  the  partners  and  part  owners  will 
be  of  universal  obligation.^  By  the  law  of  some  coun- 
tries the  acceptor  of  a  bill  of  exchange  is  discharged 
from  his  acceptance,  if,  when  he  accepted,  the  drawer 
was  bankrupt ;  and  this  effect  of  the  acceptance  regu- 
larly accompanies  it  everywhere,  as  an  incident.^ 

§  322  a.  Another  illustration  may  be  found  in  the  law 
of  some  countries,  (as  in  Alost  in  Flanders,)  which 
allows  to  a  debtor,  who  has  assigned,  or  transferred  a 
debt,  the  right  of  redemption  of  it  upon  payment  back 
of  the  price.  In  such  a  case,  according  to  Burgundus, 
the  right  of  redemption  will  exist,  notwithstanding  the 


1  See  Pothier,  Oblig.  n.  141  to  172  ;  P.  Voet,  De  Statut.   §  9,  ch.  2, 
^  12  ;  Boullenois,  Ques.  de  la  Contr.  des  Lois,  p.  330  to  338. 

2  Post,  ^  556  to  575. 

3  Fergusson  v.  Flower,  16  Martin,  R.  312.     See  also  Carroll  v.  Wa- 
ters, 9  Martin,  R.  500  ;  Pardessus,  Droit  Comna.  art.  1495. 

*  Pardessus,  Droit  Coram,  art.  1495. 


CH.  VIII.]  FOREIGN    CONTRACTS.  525 

debt  has  been  contracted  in  another  country ;  for,  in 
such  a  case,  the  right  is  for  the  benefit  of  the  debtor, 
and  the  debts  and  the  rights  of  action  are  judged  of  by 
the  law  of  his  domicil,  without  any  consideration  of  the 
place  where  the  debts  were  contracted.  Uncle  rede 
did  latest,  consuetudinem  Abstensem,  qiice  indiilget  delitori 
rcdemptionis  cessi  nominis,  eo  'pretio,  quod  assionis  audori 
solutum  est,  etiam  locum  habere  in  cere  cdieno  extra  territori- 
um  Alostense  contrado.  Cum  enim  cjusmodi  redemi:)tio  in 
favorem  debUoris  introdiida,  situm  nomimim,  et  adionum  ex 
domicilio  ejus  metitiir,  sine  consideratione  qua  regione  con- 
irada  fucrint}  A  more  unexceptionable  illustration  is 
the  incidental  right  of  warranty,  conferred  by  the  civil 
law  in  cases  of  sales  of  merchandise,  not  merely  as  to 
title,  but  as  to  quality.^ 

§  322  h.  Of  the  like  nature  is  the  benefit  of  the  right 
of  discussion,  as  it  is  called.  By  the  Roman  law  sure- 
ties were  not  primarily  liable  to  pay  the  debt,  for  which 
they  became  bound  as  sureties ;  but  were  liable  only 
after  the  creditor  had  sought  payment  from  the  princi- 
pal debtor,  and  he  was  unable  to  pay.  This  was  called 
the  benefit  or  right  of  discussion.^  Under  those  sys- 
tems of  jurisprudence  which  adopt  the  Roman  law,  and 
under  the  present  law  of  France,  the  rule  is  similar  ; 
and  the  obligation  contracted  by  the  surety  with  the 
creditor  is,  that  the  latter  shall  not  proceed  against  him 
until  he  has  first  discussed  the  principal  debtor,  if  he  is 
solvent.     This  right  the  surety  enjoys,  as  the  heneficium 


1  Burgundus,  Tract.  2,  n.  24,  25. 

-  Ante,  \  264  ;  Henry  on  Foreign  Law,  51,  52  ;  2  Boullenois,  Observ. 
46,  p.  475,  476 ;  P.  Voet,  De  Statut.  ^  9,  ch.  2,  ^  10. 

3  1  Domat,  B.  3,  tit.  4,  ^  2,  art.  1  ;  Dig.  Lib.  4G,  tit.  1,  1.  68  ;  Novell, 
tit.  4,  cap.  1. 


526  CONFLICT    OF    LAWS.  [CH.  VIIL 

ordinis  vcl  exciissionis}  And,  again ;  if  other  persons 
are  joined  with  him  in  the  obligation  as  sureties,  he  is 
not  in  the  first  instance  to  be  proceeded  against  for  the 
whole  debt,  but  only  for  his  share  of  it,  if  his  co-sure- 
ties and  co-obligees  are  solvent.^  This  is  commonly 
known  as  the  benefit  of  division,  or  heneficiiim  divisionis. 
If  the  suit  should  be  brought  in  a  different  country 
from  that  where  the  contract  or  obligation  is  made,  the 
right  of  discussion  or  division  would  still  belong  to  the 
surety,  as  an  incident  to  his  contract,  although  it  did 
not  exist  by  the  law  of  the  place  where  the  suit  was 
brought  [Lex  fori?)  The  converse  proposition  would 
be  equally  true.^  Such,  also,  is  the  lien  of  a  vendor, 
upon  a  real  estate  sold  for  the  payment  of  the  purchase 
money,  according  to  the  law  of  England ;  the  lien  given 
for  the  purchase  money,  upon  goods  or  merchandise 
sold  by  the  civil  law,  and  by  the  law  of  some  modern 
countries ;  ^  the  right  of  stoppage  in  transitu  of  the 
vendor  of  goods,  in  case  of  the  insolvency  of  the  pur- 
chaser in  the  course  of  the  transit ;  ^  the  lien  of  a  bot- 
tomry bond  on  the  thing  pledged  -,  the  lien  of  mariners 


1  Pothier  on  Oblig.  n.  407  to  n.  414  ;  Code  Civil  of  Fiance,  art.  2021 
to  art.  2026. 

2  Pothier  on  Oblig.  n.  415  to  n.  427  ;  Code  Civil  of  France,  art.  2026. 

3  3  Purge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  765,  766  ; 
Carroll  v.  Waters,  9  Martin,  R.  500. 

4  Ibid.;  ante,  ^  316  b. 

5  1  Domat,  Civil  Law,  B.  4,  §  2,  n.  3  ;  3  Purge,  Comm.  on  Col.  and 
For.  Law,  Pt.  2,  ch.  20,  p.  770,  771.  See,  as  to  Lien  of  Vendor  on  Real 
Estate,  Gilman  v.  Brown,  1  Mason,  R.  219,  220,  221  ;  Warrender  v. 
Warrender,  9  Bligh,  K.  127.  —  It  seems,  that  a  lien  created  by  the  Lex 
loci  contractus  maybe  dissolved  and  extinguished  not  only  according  to  the 
law  of  that  place,  but  also  by  any  act  done  in  a  foreign  country,  which, 
according  to  the  law  of  that  country,  would  work  such  dissolution  or  extin- 
guishment.    See  post,  §  351  a  to  351  d. 

6  Post,  ^  401. 


CH.  VIII.]  FOREIGN    CONTRACTS.  527 

on  the  ship  for  their  wages ;  the  priority  of  payment 
in  rem,  which  the  law  sometimes  attaches  to  peculiar 
debts,  or  to  particular  persons.  In  these,  and  like 
cases,  where  the  lien  or  privilege  is  created  by  the  Lex 
loci  contractus,  it  will  generally,  although  not  univer- 
sally, be  respected  and  enforced  in  all  places  where  the 
property  is  found,  or  where  the  right  can  be  benefi- 
cially enforced  by  the  Lex  fori}  And  on  the  other 
hand,  where  the  lien  or  privilege  does  not  exist  in  the 
place  of  the  contract,  it  will  not  be  allowed  in  another 
country,   although   the   local   law,  where   the  suit   is 


1  See  3  Bulge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  770, 
771,  779  ;  post,  ^  401  ;  Foelix,  Conflit  des  Lois,  Revue  Etrang.  et  Franc. 
Tom.  7,  1840,  ^  33,  p.  217,  228.  The  latter  says  ;  "  Nous  avons  vu,  que 
la  legle  suivant  laquelle  les  meubles  sont  regis  par  ]a  loi  du  domicile  de 
celui,  a  qui  ils  apparticnnent,  repose  sur  le  rapport  intime  entre  les  meu- 
bles et  la  personne  du  'propri6taire,  sur  une  fiction  legale,  qui  les  repute 
exister  au  lieu  du  domicile  de  ce  dernier.  De  la  il  suit,  que  cette  i^gle 
ne  peut  s'appliquer,  qu'aux  circonstances,  ou  actes  dans  lesquels  les  meu- 
bles n'apparaissent,  que  comme  un  accessoire  de  la  personne  ;  par  exem- 
ple  :  en  cas  de  succession  ab  intestat,  des  dispositions  de  deni^re  volont6 
ou  entre-vifs  (telles  que  les  contrats  de  mariage  expr^s  ou  tacites.)  La 
regie  est  sans  application  i  tous  les  cas  ou  les  meubles  n'ont  pas  un  rap- 
port intime  avec  la  personne  du  propri6taire  :  par  exemple,  lorsque  la  pro- 
priety de  meubles  est  r^clam^e,  et  contestee,  lorsqu'on  invoque  la  maxima, 
qu'en  fait  de  meubles  possession  vaut  litre  ;  lorsqu'il  s'agit  d'exercer  des 
privileges  ou  des  voies  d'ex6cution  sur  les  meubles,  d'en  prohiber  l'ali6na- 
tion,  d'en  prononcer  la  confiscation,  ou  de  declarer  une  succession  mobiliere 
en  d6sh6rence  au  profit  du  fisc,  ou  enfin  d'interdire  I'exportation  des  meu- 
bles. Dans  tous  ces  cas,  il  faut  appliquer  la  loi  du  lieu,  ou  les  meubles  se 
trouvent  effectivement :  car  la  dite  fiction  cesse  par  le  fait.  Par  rapport 
aux  privileges  sur  les  meubles,  Hert  soutient  I'opinion  contraire,  en  faisant 
observer,  que  toutes  les  questions  de  privilege  sur  les  meubles  doivcnt  6tre 
decid6es  dans  le  lieu  du  domicile  du  debiteur,  par  suite  de  la  connexile  des 
causes.  Cette  opinion  revient  a  celle,  qui  attribue  t\  la  loi  du  domicile  son 
effat  sur  I'universalite  des  biens  d'un  individu.  Nous  refuterons  cette 
opinion  au  n°  37  ci-apves.  Ce  que  nous  venons  de  dire  des  meubles  s'ap- 
plique  non  seulement  aux  meubles  corporels,  mais  aussi  aux  meubles  in- 
corporels  ;  il  y  a  identity  de  raison."     See  post,  ^  -101  to  403. 


528  CONFLICT    OF   LAWS.  [CH.  VIIL 

brought,  would  otherwise  sustain  it.^  Thus,  if  goods 
are  purchased  iu  England  by  a  citizen  of  Louisiana,  no 
lien  or  privilege  will  exist  for  the  unpaid  price,  in  case 
of  his  insolvency,  although  the  law  of  Louisiana  allows 
it  in  common  cases ;  because  it  is  not  given  by  the  law 
of  the  place  of  the  contract,  (England.")  Nor  would 
there  seem  to  be  any  just  ground  of  doubt,  that  a  bot- 
tomry bond  would  generally  be  held  valid  in  rem  in  all 
commercial  countries,  if  the  lien  is  good  by  the  law  of 
the  place  of  the  contract.^ 

§  322  c.  We  have  said,  that  such  liens  will  be  gene- 
rally, although  not  universally,  respected ;  for  although 
the  foreign  jurists  generally  assert  the  doctrine,  they 
do  not  universally  agree  in  it  as  to  all  kinds  of  pro- 
perty, or  under  all  circumstances.  Some  of  them  take 
a  distinction  between  personal  or  movable  property, 
and  real  or  immovable  property ;  giving  effect  to  the 
former  according  to  the  law  of  the  place  of  the  contract, 
and  insisting,  as  to  the  latter,  that  no  lien  can  exist, 
except  it  is  founded  in  the  law  of  the  place  where  the 
property  is  situated  (m  sitcc.)  Others  make  no  dis- 
tinction whatsoever  in  respect  to  such  lien  or  privilege 
between  movable  property  and  immovable  property ; 
some  holding,  that  in  both  cases  the  Lex  loci  contractus 
is  equally  to  govern  ;  and  some,  that  in  both  cases 
the  Lex  rei  sitcc  is  equally  to  govern.^ 


»  Ibid. 

2  Whiston  V.  Stodder,  8  Martin,  R.  95,  134,  135. 

3  Post,  ^  323,  note  2. 

4  See  sonae  of  these  opinions  cited  in  Rodenburg^,  De  Divers.  Statut. 
tit.  2,  ch.  5,  ^  IG  ;  2  Boullenois,  Appx.  p.  49,  50,  51  ;  Mattha-us,  De  Auc- 
tionibus.  Lib.  1,  ch.  21,  n.  35  to  n.  41,  p.  294  to  p.  299  ;  1  Boullenois, 
Obs.  30,  p.  833,  834,  838  ;  Foelix,  Conflit  des  Lois,  Revue  Etrang.  et 
Franc.  1840,  Tom.  7,  ^  32  to  34,  p.  222  to  p.  228. 


CH.  VIII.]  FOREIGN    CONTRACTS.  529 

§  322  d.  Rodenburg  notices  these  distinctions ;  and 
says,  that,  although,  by  the  laws  of  some  countries 
where  a  marriage  is  had,  the  wife  has  an  hypothecation 
upon  all  the  property  of  her  husband,  for  her  dotal  por- 
tion, [pro  restitutione  dot  is,)  yet  a  question  may  arise, 
whether  this  hypothecation  can  reach  the  property  of 
the  husband,  situate  in  another  country ;  where  no  such 
law  exists ;  or  the  law  is  to  the  contrary.  He  remarks, 
also,  that  Christina^us  has  stated,  that  the  affirmative 
has  been  maintained  in  many  decisions.  But  Roden- 
burg adds,  that  he  dares  not  affirm  that  they  have  been 
rightly  made.  Qiuv  tamcn  an  rede  se  haheant,  affirmare 
non  ausim.  And  he  thinks,  that  the  hypothecation  does 
not  extend  to  the  real  property  of  the  husband,  situate 
in  a  foreign  country ;  because  the  statute  is  real,  and 
cannot  have  an  extra-territorial  authority.  Consequenter 
non  tacita  seu  legalis  liypotheca  adstringit  bona  alia,  qiiam 
quibus  lex  poterit  imperare ;  ea  nimiriim,  quce  legislatoris 
territorio  sunt  supposita,  ciijus  soliiis  loci'  legis  est,  tanquam 
statuii  realis,  realcm  in  rebus  effectmn  iwoducere,  cum  iilte- 
rius  judicis  auctoritas  non  efficiat  hypoihecam} 

§  323.  But  the  recognition  of  the  existence  and  valid- 
ity of  such  liens  by  foreign  countries  is  not  to  be  con- 
founded with  the  giving  them  a  superiority  or  priority 
over  all  other  liens  and  rights,  justly  acquired  in  such 
foreign  countries  under  their  own  laws,  merely  because 
the  former  liens  in  the  countries  where  they  first  at- 
tached, had  there  by  law,  or  by  custom,  such  a  superi- 
ority or  priority.  Such  a  case  would  present  a  very 
different   question,   arising   from   a   conflict  of  rights 


1  Rodenburg,  De  Divers.  Stat.  tit.  2,  ch.  5,  §  16  ;  2  Boullenois,  Appx. 
p.  47.  See  also  Rodenburg,  tit.  2,  ch.  5,  ^  5,  6,  7  ;  2  Boullenois,  Appx. 
p.  37,  38.     See  also  post,  ^  324,  325  ;  1  Boullenois,  681,  685. 

CONFL.  45 


530  CONFLICT    OF   LAWS.  [CH.   VIIL 

equally  well  founded  in  the  respective  countries.^  This 
very  distinction  was  pointed  out  by  Mr.  Chief  Justice 
Marshall,  in  delivering  the  opinion  of  the  Court,  in  an 
important  case.  His  language  was ;  "  The  law  of  the 
place  where  a  contract  is  made,  is,  generally  speaking, 
the  law  of  the  contract ;  i.  e.  it  is  the  law  by  which  the 
contract  is  expounded.  But  the  right  of  priority  forms 
no  part  of  the  contract.  It  is  extrinsic,  and  rather  a 
personal  privilege,  dependent  on  the  place  where  the 
property  lies,  and  where  the  court  sits  which  is  to 
decide  the  cause."  ^  And  the  doctrine  was  on  that 
occasion  expressly  applied  to  the  case  of  a  contract 
made  in  a  foreign  country  with  a  person  resident 
abroad.3 

§  324.  Huberus  has  also  laid  down  the  same  quali- 
fying doctrine  ;  foreign  contracts  are  to  have  their  full 
effect  here,  provided  they  do  not  prejudice  the  rights  of 
our  own  country,  or  its  citizens.  Qmdentis  nihil iMcstati 
aid  jtiri  alteriiis  imperantes  ejusque  civiiim  prcBJudicetur.^ 
Or,  as  he  has  more  fully  expressed  it  in  another  place ; 
Effeda  coniradimm  ccrto  loco  iJiitoriim,  pro  jure  lod  illius 


1  Post,  ^  324,  327,  ^  524  to  §  527,  ^  582  ;  Foelix,  Conflit  des  Lois,  Revue 
Etrang.  et  Franc.  Tom.  7,  1840,  ^  33,  p.  227,  228. —  This  question  might 
arise  even  in  relation  to  a  bottomry  bond,  which  by  the  lavp  of  most  mari- 
time countries  has  a  priority  or  preference  over  most  other  claims,  in  case  of 
a  deficiency  of  the  proceeds  to  satisfy  all  claims.  In  such  a  case,  if  the  local 
law  of  the  country,  where  the  bond  was  sought  to  be  enforced,  differed,  as 
to  such  propriety  or  preference,  from  that  of  the  place  where  the  bond  was 
made  and  executed,  it  might  be  a  very  nice  question,  which  ought  to  pre- 
vail ;  and  would  therefore  probably  be  disposed  of  upon  consideration  of 
local  and  municipal  policy.  But  upon  this  subject  we  shall  have  occasion 
to  speak  hereafter.     See  post,  ^  401  to  ^  403. 

2  Harrison  v.  Sterry,  5  Cranch,  289,  298.  See  Ogden  v.  Saunders, 
12  Wheaton,  R.  361,  362. 

3  Ibid. 

4  Huberus,  De  Conflict.  Leg.  Tom'.  2,  Lib.  1,  tit.  3,  ^  2. 


CH.  viil]  foreign  contracts.  531 

alibi  qiioqiie  olservantiiry  si  nullum  inde  civihus  alienis  crea- 
tur  p'cejiidicium  in  jure  sibi  quwsito ;  ad  quod  potestas 
altoius  hci  non  tenetur,  neque  potest  extendere  jus  diversi 
tcnitorii}     Hence  he  adds,  that  the  general  rule  should 
be  thus  far  enlarged.     If  the  law  of  another  country  is 
in  conflict  with  that  of  our  own  state,  in  which  also  a 
contract  is  made,  conflicting  with  a  contract  made  else- 
where, we  should,  in  such  a  case,  rather  observe  our 
own  law  than  the  foreign  law,-     Ampliamus   hanc   regu- 
lam  tali  extcnsione.     Si  jus  loci  in  alio  imperio  pugnet  cum 
jure  nostrce  civitatis,  in  qua  contractus  etiam  initus  est,  con- 
figcns  cum  eo  contractu,  qui  alibi  celebratus  fuit ;  magis  est, 
lit  jus  nostrum,  quam  jus  alienum,  servemus?     And  he 
puts  several  cases  to  illustrate  the  rule.     By  the  Roman 
law,  and  the  law  of  Friesland,  an  express  hypotheca- 
tion of  movable  property,  oldest  in  date,  is  entitled  to 
a  preference  or  priority,  even  against  a  third  possessor. 
But  it  is  not  so  among  the  Batavians.     And,  therefore, 
if,  upon  such  an  hypothecation,  the  party  brings  a  suit 
in  Holland  against  such  third  possessor,  his  suit  will  be 
rejected ;  because  the  right  of   such  third   possessor 
cannot  be  taken  away  by  the  law  of  a  foreign  country.'' 
§  325.  He  also  puts  another  case.     In  Holland,  if  a 
marriage  contract  is  privately  or  secretly  made,  stipu- 
lating that  the  wife  shall  not  be  liable  for  debts  con- 
tracted solely  by  the  husband,  it  is  valid,  notwithstand- 
ing it  is  to  the  prejudice  of  subsequent  creditors.    But 
in  Friesland  such  a  contract  is  not  valid  unless  published ; 


1  Huberus,  Tom.  2,  Lib.  1,  tit.  3,  De  Confl.  Leg.  ^  11 ;  post,  §  525. 

2  Huberus,  Tom.  2,  Lib.  1,  tit.  3,  §  11 ;  post,  ^  525. 

3  Huberus,  Tom.  2,  Lib.  1,  tit.  3,  ^  11  ;  ante,  ^  239. 

4  Ibid.  —  See  also  Rodenburg,  De   Divers.  Stat.  tit.  2,  ch.  5  ;  2  Boul- 
lenois,  Appx.  p.  47;  1  Boullenois,  p.  683,  684. 


532  CONFLICT    OF   LAWS.  [CH.  VIIL 

nor  would  the  ignorance  of  the  parties  be  any  excuse, 
according  to  the  Roman  law  and  equity.  If  the  hus- 
band should  contract  debts  in  FrieslancI,  on  a  suit  there, 
the  wife  would  be  held  liable  for  a  moiety  thereof  to 
the  Frisian  creditors,  and  could  not  defend  herself  under 
her  private  dotal  contract;  for  the  creditors  might 
reply,  that  such  a  private  dotal  contract  had  no  effect 
in  Friesland,  because  it  was  not  published.  But  the 
Batavian  creditors,  contracting  in  Holland,  although 
suing  in  Friesland,  would  not  be  entitled  to  a  similar 
remedy ;  for,  in  such  a  case,  the  law  of  the  place  of 
their  contract  alone,  and  not  the  law  of  both  countries, 
would  come  under  consideration.^  The  author  was 
probably  here  treating  of  a  case  where  the  debts  were 
contracted  in  Friesland,  after  the  husband  and  wife  had 
removed  their  domicil  there ;  or,  at  least,  if  there  was 
no  change  of  domicil,  where  the  property  of  the  parties, 
to  be  affected  by  the  marriage  contract,  was  situate 
in  Friesland.  Under  any  other  aspect,  it  would  be  diffi- 
cult to  maintain  the  doctrine. 

§  325  a.  Huberus  in  another  place  asserts  a  similar 
doctrine.  A  creditor  (says  he)  on  account  of  a  bill  of 
exchange,  exercising  his  right  in  due  time,  has  a  pre- 
ference in  Holland  to  all  other  creditors  against  the 
movable  property  of  his  debtor.  The  debtor  has  pro- 
perty of  the  same  kind  in  Friesland,  where  no  such 


^  Huberus,  Lib.  1,  tit.  3,  De  Confl.  Leg.  ^  11.  —  Huberus  adds;  Et 
hoc  prevalet  apud  nos,  in  contractibus  heic  celebratis,  ut  nuperrim^  con- 
sullus  respondi.  The  sense  of  this  passage  in  Huberus  is  mistranslated  in 
the  note  to  3  Dallas,  R.  375.  The  translator  has  translated  the  words,  in 
contractibus  heic  celebratis,  ^^  where  the  marriage  was  contracted  here," 
Bind  jus  loci  contractus,  "  the  law  of  the  place  where  the  marriage  was 
contracted  ;"  whereas  the  author  in  this  clause  is  manifestly  referring  to 
the  contracts  (debts)  of  the  respective  creditors. 


CH.  VIII.]  FOREIGN    CONTRACTS.  533^ 

law  obtains.  The  question  is,  whether  such  a  creditor 
will  be  preferred  there  to  all  other  creditors?  Cer- 
tainly not,  since  by  the  law  there,  the  right  of  the  cre- 
ditors is  established.  Creditor  ex  causa  Cambu,jussm(m 
in  tempore  exercens,  lorccfertur  apud  Batavos  omnibus  aliis 
creditorihiis  in  bona  mohilia  debitoris.  Hie  hahct  ejusmodi 
res  in  Frisia,  ubi  hoc  jus  non  obtinet.  An,  ibi,  creditor 
etiam  p'cvferetur  cdiis  creditoribus  ?  Nullomodo  ;  quoniani 
his  creditoribus  vi  legum  hie  receptarwn  jus  prideni  qua^si- 
ium  est} 

§  325  b.  The  same  doctrine  is  adopted  by  ITertius. 
After  remarking,  that  in  this  matter  of  preferences  and 
privileges  of  creditors,  the  statute  laws  of  particular 
countries  have  changed  the  common  (the  civil)  law ;  in 
answer  to  the  question,  what  law  ought  to  govern  in 
such  cases,  he  says ;  If  the  controversy  respects  im- 
movables, the  law  of  the  country  of  the  situs  rei  is, 
without  doubt,  to  govern.  But  in  respect  to  movables, 
if  the  question  arises  in  cases  of  contract,  or  of  quasi 
contract,  the  law  of  the  place  of  the  contract  is  to 
be  examined.  But,  inasmuch  as  the  preference  arises 
from  some  peculiar  law  or  privilege,  it  ought  not  to  be 
extended  to  the  prejudice  of  the  state  where  the  debt- 
or resides,  and  his  movables  are  deemed  to  be  collected. 
In  the  conflict  (concursus)  of  creditors,  the  law  of  the 
place  of  domicil  of  the  debtor  ought  to  be  observed. 
Enimvero,  quia  antelatio  ex  jure  singulari  vel  privilegio 
competit,  non  debet  in  prwjiidicium  illius  civitatis,  sub  qua 
debitor  degit,  et  res  ejus  mobiles  contineri  censentur,  extendi. 
Ad  jura  igitur  domicilii  debitoris,  ubi  fit  concursus  credito- 


1  D.  Hub.  Lib.  3,  J.  P.  Univer.  cap.  10,  ^  44,  cited  1  Hertii  Opera,  De 
Collis.  Leg.  ^  4,  n.  64,  p.  150,  edit.  1737  ;  Id.  p.  511,  edit.  1716  ;  post, 
^627. 

45* 


534  CONFLICT    OF   LAWS.  [CH.  VIIL 

mm,  et  quo  omnes  cvjusciinque  generis  lites  adversus  ilium 
deUtorem  propter  connexitatem  causes  traduntitr,  7'egidariter 
respiciendum  erif} 

§  325  c.  Rodenburg  1ms  discussed  this  subject  at 
large,  in  relation  to  the  liens,  the  privileges,  and  the 
priorities  of  creditors  in  cases  of  insolvency,  and  in  other 
cases,  where  his  property,  movable  or  immovable,  is  situ- 
ated in  different  countries,  and  is  not  sufficient  to  sa- 
tisfy all  his  debts.  This  is  commonly  known  by  the 
name  of  Ooncursus  creditoriim,  and  the  privilege,  or  pri- 
ority itself,  by  the  name  of  the  Jus  Prwlationis.  It  may 
be  useful  to  present  a  brief  sketch  of  the  substance  of 
his  remarks  and  his  conclusions  on  the  subject.  In 
respect  to  the  property  of  debtors  in  different  countries, 
he  says,  that  jurists  have  distinguished  between  those 
things  which  concern  the  form  and  order  of  the  suit,  and 
those  which  concern  the  decision  or  matter  of  the  suit. 
The  suit  is  to  be  according  to  the  law  of  the  place  where 
it  is  instituted.  As,  for  example,  if  the  debtor's  pro- 
perty is  to  be  taken  in  satisfaction  of  a  judgment,  the 
execution  and  sale  thereof  are  to  be  according  to  the 
law  of  the  place  where  the  goods  are  situated,  or  where 
they  are  taken  upon  the  judgment.  But  if  the  debtor 
has  become  bankrupt,  or  notoriously  insolvent,  so  that 
there  is  no  further  opportunity  for  the  seizure  of  his 
movables,  or  for  execution  thereon,  all  the  creditors  be- 
ing in  the  same  condition,  the  question  as  to  their  rights 
and  privileges  should  be  discussed  or  litigated  in  the 
place  of  his  domicil ;  for  it  is  properly  a  question  as  to 
the  proceedings  in  the  suit,  de  litis  ordinatione.^     But  a 

1  1  Hertii  Opera,  De  Collis.  Leg.  ^  1,  n.  Gl,  p.    150,    edit.    1737  ;  Id. 
p.  211,  edit.  1716. 

2  Rodenburg-,  De  Div.  Slat.  tit.  2,  ch.  5,  \S  16  ;  2  Boullenois,  Appx.  p. 
47,  48  ;  1  Boullenois,  684,  685. 


CH.  viil]  foreign  contracts.  535 

different  rule  prevails  as  to  the  decision  and  merits  of  a 
suit;  and  the  rights  of  the  creditors,  in  respect  to  the 
priority  of  their  debts  upon  the  property  of  the  debtor, 
ought  to  be  measured  according  to  the  law  of  the  place 
where  it  is  really  situated,  or  is  presumed  to  be  situa- 
ted.' 

§  325  cl.  In  respect  to  movable  property,  as  it  is 
always  supposed  to  be  in  the  place  of  the  domicil  of  the 
debtor,  (for  all  effects  not  having  a  fixed  location  are 
presumed  to  adhere  to  his  person,)  it  is  the  law  of  his 
domicil  which  ought  to  decide  the  rights  of  creditors  as 
to  such  movables.  This  rule  will  prevail,  where  the 
goods  are  in  his  possession,  unless  indeed  a  creditor  has 
by  his  diligence,  according  to  the  laws  of  the  place,  ac- 
quired a  superior  right  by  an  execution  over  them  ;  for 
he  will  then  retain  that  privilege,  since  it  is  not  so  much 
founded  in  the  quality  of  the  debt,  as  that  the  creditor 
has  by  his  diligence  gained  a  priority ;  so  that  this  pri- 
vilege being  attached  to  the  formalities  regulating  the 
execution,  it  ought  therefore  to  be  regulated  by  the 
law  of  the  place  of  execution.  And  besides  ;  the  Judge 
who  puts  the  creditor  judicially  in  possession  of  pro- 
perty, seized  within  his  jurisdiction,  is  regarded  as  act- 
ing in  the  name  of  the  debtor ;  so  that  it  may  be  deemed 
affected  by  the  same  reasoning,  as  if  the  debtor  himself 
had  given  it  in  pledge  to  the  creditor  in  the  place  where 
the  property  is  seized.^ 

§  325  e.  Uodenburg  afterwards  puts  the  case  of  a 
merchant  having  different  shops  of  trade  in  different 
places ;  and  he  says  that  the  question  has  been  put. 


1  Rodenburg,  ibid.  ;  2  Boullenois,  Appx.   p.  48 ;    1    Boullenois,  685  ; 
post,  ^  524  to  527,  582. 

2  Rodenburg,  ibid.  ;  2  Boullenois,  Appx.  p.  48  ;  1  Boullenois,  685. 


536  CONFLICT    OF   LAWS.  [CH.  VIII. 

whether  in  such  a  case  the  creditors  ia  each  place  are 
entitled  to  be  paid  out  of  the  property  there  in  trade, 
or  the  whole  property  is  to  be  divided  among  all  the 
creditors.  Some  jurists  maintain  the  affirmative.  But 
others,  with  whom  Rodenburg  agrees,  hold,  that  the 
whole  should  be  distributed  among  the  creditors  gene- 
rally in  cases  of  insolvency.' 

§  325/.  Rondenburg  then  puts  the  case  of  a  contract 
made  in  a  foreign  country,  not  being  the  domicil  of  the 
debtor,  by  whose  laws  a  preference  is  granted  to  credit- 
ors by  promissory  notes  of  hand ;  and  he  says,  that  it 
might  seem  in  such  a  case,  that  the  law  of  the  place 
where  the  contract  is  made,  ought  to  govern  ;  for  that  is 
the  law  by  which  the  obligation  of  contracts  is  ordina- 
rily expounded  and  governed  ;  ^  Eo  quod  ohligationes  di- 
rigi  soleant  a  loco,  ubi  contraJmntur?  But  after  stating, 
that  Mascardus  has  expressed  a  similar  opinion,  follow- 
ing Decianus,  he  adds :  That  it  is  a  nearer  approach  to 
the  truth  to  say,  that  the  law  of  the  place  of  the  con- 
tract ought  not  to  govern  ;  because  that  law  can  deter- 
mine only  the  greater  or  less  extent  of  the  engagements 
of  the  debtor,  and  concerns  only  the  contracting  parties, 
who,  having  contracted  in  another  place  than  that  of 
their  domicil,  are  presumed  to  have  referred  to  the  laws 
of  that  place  the  form,  the  obligation,  the  mode,  the  con- 
dition, and  whole  nature  of  the  contract.  Veriim  non 
esse  respiciendimi  locum  contractus  vero  ]propnus  est ;  utpote, 
qui  eo  duniaxat  pertineat,  quo  vel  arctiiis,  vcl  remissiiis  ex 


1  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  5,   ^  \Q  ;  Boullenois,  Appx.  p. 
49,  50  ;  1  Boullenois,  687,  688. 

2  Rodenburg,  De  Div.  Slat.  tit.  2,  ch.  5,  ^  16  ;  2  Boullenois,  Appx.  p. 
50  ;  1  Boullenois,  688. 

3  Ibid. 


CH.  viil]  foreign  contracts.  537 

contractu  suo  tcneatiir  ipse  debitor,  adeoqiie  spectattir,  quoad 
ipsos  contrahentes,  quod  eo  ipso,  quod  alio  in  loco  contractum 
celebrant,  adejusdem  leges,  formam,  vinculum,  modum,  condi- 
tionem,  totam  denique  negotiinaturam,  sui  respectu,  componunt} 
lie  proceeds  to  render  the  reasons  of  his  opinion,  that 
this  preference  of  creditors  constitutes  no  part  of  the 
law  of  the  contract,  obligatory  in  other  countries,  and 
says  :  Moreover,  what  does  not  arise  from  the  act  of 
man,  but  simply  from  the  authority  of  the  law,  of  which 
sort  all  privileges  of  preference  among  creditors  are,  it 
should  be  said,  that  the  authority  of  the  legislator  has 
no  effect  upon  property  not  subjected  to  him,  when  the 
controversy  respects  the  interest  of  third  persons,  or  of 
other  creditors,  who  have  not  contracted  in  that  place, 
and  who  consequently  have  submitted  themselves  to 
the  laws  of  that  place.  Besides  ;  it  is  manifest,  that  we 
do  not  exercise  these  sorts  of  privileges  upon  the  per- 
sons of  debtors,  because,  being  directed  upon  the  pro- 
perty, they  have  their  place  properly  among  all  the 
creditors.  Ccderum,  si  quid  non  ab  actu  hominis,  sedapotes- 
tate  legis  proficiscitur,  cujusmodi  sunt  prcelationis  privilegia 
omnia,  dicendmn  est  vim  legislatoris  nullani  esse  in  bona  sibi 
non  subjecta  tertii  respectu,  seu  creditorimi  aliorum,  qui  inibi 
nullum  gesserint  negotium,  ncc  legibus  loci  istius  se  submise- 
rint.  Ad  hcec  constat  privilegiis  isiis  non  agi  in  debitoris 
personam,  utpote  qum  in  res  directa,  locum  habeant  inter  cre- 
ditores.^ 

§  325  g.   Rodenburg  farther  insists,  that   the  same 


1  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  5,  §  16  ;  2  BouUenois,  Appx.  p. 
50 ;  1  BouUenois. 

2  Rodenburg,  De  Div.  Stat,  tit.  2,  ch.  16  ;  2  BouUenois,  Appx.  p.  50  ; 
1  BouUenois,  688  ;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch. 
20,  p.  770,  771. 


538  CONFLICT    OF   LAWS.  [CH.  VIIL 

rule  applies  when  the  debtor  has  changed  his  domicil 
to  another  country.  If  in  the  country  of  his  original 
domicil  where  the  contract  is  made,  there  would  be  a 
privilege  thereby  created  upon  the  movables  of  the 
debtor,  and  he  afterwards  removes  to  another  country, 
where  no  such  privilege  exists,  Kodenburg  says,  that 
although  it  might  seem  that  the  privilege  ought  still  to 
continue  on  his  movables  in  his  old  domicil,  yet  the 
true  rule  is,  that  the  law  of  the  new  domicil  is  to  pre- 
vail ;  for  movables  are  governed  by  the  law  of  the  do- 
micil. Nee  aliud  de  eo  deUtore  dieendum  est,  qui  in  loco 
illo  privilegii  domiciliumfoverit  tempore  celelrati  cantr actus  ; 
quamvis  enim  videri  p)ossit  Jus  illud  prcelationis  creditori 
per  leges  loci  domicilii  in  reins  moUlihus  legitime  qucesitum, 
siibsecutd  domicilii  mutcdione  non  debere  amitti ;  mohilia 
tamen,  in  qidhus  prioris  domicilii  lege  temdt  prcelationis  pri- 
vilegium,  traductis  alio  domesticis  laribus,  traducuntur  qiio- 
qu&  in  leges  novi  domicilii,  edque  lege  administrantiir ;  mu- 
tatione  enim  domicilii  midcdur  et  moUliiim  conditio  eoriim, 
cpice  in  manum  cdiis  tradita  non  sunt,  etiam  dispendio  tercii} 
§  325  k  In  regard  to  immovables,  Rodenburg  holds, 
that,  if  there  is  either  an  express  or  tacit  hypothecation 
or  lien  by  the  law  of  the  domicil  of  the  debtor,  which 
is  not  equally  allowed  by  the  law  of  the  situs  thereof, 
the  law  of  the  situs  or  situation  is  to  govern ;  and  that 
the  creditor  will  in  vain  seek  to  assert  any  right  of  pri- 
ority or  privilege ;  for,  as  no  man  has  authority  ex- 
pressly to  create  such  a  charge  under  a  foreign  law  by 
a  judicial  proceeding,  so  neither  can  the  foreign  law 
itself  exert  such  an  authority ;  since  real  statutes  have 


1  Rodenburg,  de  Div.  Stat.  tit.  2,  ch,  5,  ^  16  ;  2  Boullenois,  Appx. 
p.  50  ;  1  Boullenois,  688,  689  ;  3  Burge,  Coram,  on  Col.  and  For.  Law, 
Pt.  2,  ch.  20,  p.  770,  771. 


CH.  VIII.]  FOREIGN    CONTRACTS.  539 

no  operation  beyond  the  territory  where  they  are  en- 
acted. Tandem  id  ad  immohiUa  transeam.  FaCyjus  tacitw 
sen  legalls  lujpothecm  non  ohtinere  idem  in  loco  rei  sitw, 
quod  ohtimt  in  loco  domicilii  dehitoris,  dicendimi  fnistra  est 
esse  creditorem^  qui  hujusmodi  liypothecw  oUcntu  priorita- 
tem  sibi  asseriierit ;  cum  ceqiie  atqiie  expressim  facto  homi- 
7iis,  coram  iino  jiidicio,  liypothecce  nexu  devinciri  neqiieiint 
alteriits  territorii  hona,  ita  nee  legis  idlius  potestas  est  afficere 
prcedia  extera  ;  quod  statida  realia  tcrritoriiim  non  egredi- 
antur}  The  result,  therefore,  of  the  doctrine  of  Roden- 
burg  seems  to  be,  that  the  proper /on/wi  to  decide  upon 
all  questions  of  the  priorities  and  preferences  of  credit- 
ors, is  the  place  of  the  domicil  of  the  debtor ;  and  that 
the  law.  of  that  place,  and  not  the  law  of  the  place  of 
the  contract,  is  to  govern  in  all  cases  of  such  priorities 
and  preferences,  in  respect  to  movables  situated  in  his 
place  of  domicil.  But  as  to  movables  situate  else- 
where, as  well  as  to  immovables,  the  law  rei  sitce  is  to 
govern ;  although,  to  prevent  confusion  and  inconveni- 
ence, the  administration  and  adjudication  thereof  in  all 
cases  is  to  be  by  the  forum  or  tribunal  of  the  debtor's 
domicil." 


1  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  5,  ^\Q\  2  Boullenois,  App.K. 
p.  50,  51  ;  1  Boullenois,  689,  690  ;  Id.  Observ.  30,  p.  818  to  p.  875. 

2  1  Boullenois,  Observ.  30,  p.  818  to  p.  820.  —As  the  work  of  Roden- 
burg is  rarely  found  in  our  Libraries,  and  the  subject  here  discussed  is  of 
great  practical  consequence,  it  may  be  useful  to  subjoin  the  whole  passage 
in  this  note.  "Pergamus  quasrere  ulterius,  creditoribus  de  praelatione 
contendentibus,  quod  Jus  cujusque  loci  oporteat  inspicere.  Primum  uta- 
mur  vulgata  D  D.  distinctione,  qua  separantur  ea,  qua;  litis  formam  con- 
cernunt  ac  ordinationem,  ab  iis,  qua;  decisionem  aut  nnateriam.  Lis  ordi- 
nanda,  secundum  morem  loci,  in  quo  ventilatur.  Ut,  si  judicati  exequendi 
causa  bona  debitoris  distrahantur,  qui  solvendo  sit,  executio  peragatur  eo 
loci,  ubi  bona  sita  sunt,  aut  in  causam  judicati  capiuntur.  Sin  cesserit 
foro  debitor,  aut  propalam  desierit  esse  solvendo,  ut  isti  mobiliura  capioni, 
aut  ulli  omnino  executioni  non  sit  ultra  locus,  facta  jam  omnium  credito- 


540  CONFLICT    OF   LAWS.  [CH.  VIIL 

§  325  i.  Boullenois  in  commenting  upon  Rodenburg 
says,  that  every  hypothecation  or  privilege  upon  pro- 


rum  conditione  pari,  disputatio  de  privilegiis,  aut  concursu  creditorum 
veniat  instituenda,  ubi  debitor  habuerit  domicilium.  Unde  cum  apud  nos 
reliclis  fortunis  solum  vertisset  debitor  obaeratus,  ac  res  ejus  sitas  in  Hol- 
landia  venum  proscriberet  curator,  creditores  Hollandi,  apud  Provincia3  suae 
Curiam  venditioni  intercedentes,  causa  ibidem  ventilata  tulerunt  repiilsam  : 
audito  in  et  curatore,  quod  apud  nos  super  universis  debitoris  facultatibus, 
adeoque  et  pretio  ex  venditione  ilia  redigendo,  ab  uno  eodemque  Judice  pe- 
rasafrendadecidendaque  sit  creditorum  contentio  :  ex  communi  scribentium 
placito.  Ob  manifestam  quoque  causae  continentiam,  ne  super  creditorum 
Jure  a  diversis  Judicibus  dissonae  sententia?  pronunlientur.  Hajc  de  litis 
ordinaloiiis.  Aliud  fere  a  pra?cedentibus  obtinere  dixeris  in  ejusdem  deci- 
soriis :  Jus  enim  creditorum  super  prioritate  in  bonis  debitoris  demeteri 
oportet  a  loco,  ubi  distracta  bona  sita  sunt,  velle  esse,  intelliguntur.  Et 
quidem  de  mobilibus  si  qu^ratur,  cum  semper  ibi  esse  existimentur,  ubi 
Creditor  [Debitor]  fovet  domicilium,  cujus  ossibus  vagaj  ha3  res  intelligun- 
tur adhffirere,  utique  ex  lege  ejusdem  domicilii  discutienda  causa  credito- 
rum est.  Hsec  ita  nisi  forsan  executio  directa  sit  in  ejus  debitoris  mobilia, 
qui  adhuc  in  possessione  suorum  bonorum  sit,  feret  enim  tum  creditor  dili- 
gentiiT!  ac  vigilantiae  suaj  pracmium,  si  quod  eo  nomine  loci  mores,  ubi  in 
causam  judicati  ceperit  mobilia,  pra^  aliis  creditoribus  ipsi  indulserint ; 
quod  privilegium  illud  non  tam  proficiscatur  ex  credito,  quam  ex  acta 
ipso  executionis,  qua  alios  creditor  prrevertit,  adeoque  base  res  tanquam 
concernens  exequendi  ordinem,  legem  accipiat  a  loco,  ubi  ilia  peragitur,  ac 
praeterea  pignus  illud  judiciale  ita  constituens  Judex  in  bonis,  apud  se  in 
causam  judicati  captis,  dicitur  supplere  vicem  debitoris  ;  ut  perinde  res 
habeatur,  ac  si  ipse  debitor  bona  ilia  eo  loci  pignori  tradidisset.  Ila^c  ita 
si  in  uno  loco  debitoris  sit  domicilium."  Again  ;  "  Fac  foris  contractum 
celebratum,  ubi  per  mores  ejusdem  loci  Jus  pra-Iationis  inter  chirographa- 
rios  compelit,  locus  videri  posset  attendendus  esse  contracla?  obligationis  : 
eo  quod  obligationes  dirigi  soleant  a  loco,  ubi  contrahuntur.  Verum  non 
esse  respiciendum  locum  contractus  vero  proprius  est :  utpote  qui  eo  dun- 
taxat  perlineat,  quo  vel  arctius,  vel  remissius  ex  contractu  suo  teneatur 
ipse  debitor,  adeoque  spectetur  quoad  ipsos  contrahentes,  quod  eo  ipso, 
quod  alio  in  loco  contractum  celebrent,  ad  ejusdem  leges,  fotmam,  vincu- 
lum, modum,  conditionem,  totam  dcnique  negolii  naturam,  sui  respectu, 
componunt.  Ca'terum  si  qui  non  ab  actu  honiinis,  sed  ^  potestate  legis 
proficiscilur,  cujusmodi  sunt  pralationis  privilegia  omnia,  dicendurn  est 
vim  Legislatoris  nuUam  esse  in  bona  sibi  non  subjecta  tertii  respectu,  seu 
creditorum  aliorum,  qui  inibi  nullum  gesserint  negotium,  nee  legibus  loci 
istius  se  submiserint.  Ad  hajc  constat  privilegiis  istis  non  agri  in  debi- 
toris personam,  utpote  quae  in  res  directa,  locum  habeant  inter  creditores. 


CH.  VIII.]  FOREIGN   CONTRACTS.  541 

perty  is  to  be  deemed  a  real  right  [jus  ad  rem,  or  jus  in 
re.)  An  action  without  any  hypothecation  or  privilege 
is  purely  personal.     The  existence  of  a  real  right  must 


Ecquid  autem  Juris  est  alieno  Judici  circa  res  sibi  non  supposilas,  dispen- 
dio  tertii,  qui  apud  se  non  contraxit?  Nee  est,  quod  retorserit  creditor 
suum  non  minus  spectari  oportere,  atque  debitoris  domicilium.  Constat 
quippe,  qui  cum  alio  contrahit,  non  esse  vel  debere  esse  conditionis  ejus 
ignarum.  Ut  nihil  impuletur  ei,  qui  in  mobilibus  a  loco  domicilii  debi- 
toris sua  mensus  est  privilegia,  ad  quem  locum  palam  est  mobilia  perli- 
nere :  cum  culpa  non  vacent  alii,  qui  privilegium  sibi  assumpserint  a  po- 
testate  Legislatoris  alieni,  cui  de  mobilibus  disponendi  nullum  Jus  est. 
Nee  aliud  de  eo  debitore  dicendum  est,  qui  in  loco  illo  privilegii  domici- 
lium foverit  tempore  celebrati  contractus  :  quamvis  enim  videri  possit  Jus 
illud  pra^lationis,  creditori  per  leges  loci  domicilii  in  rebus  mobilibus  legi- 
time quixjsitum,  subsecuta  domicilii  mutatione  non  debere  amitti  ;  mobilia 
tamen,  in  quibus  prioris  domicilii  lege  tenuit  pra?lationis  privilegium,  tra- 
duclis  alio  domesticis  laribus,  traducuntur  quoque  in  leges  novi  domicilii, 
eaque  lege  administrantur  :  mutatione  enim  domicilii  mutatur  et  mobilium 
conditio  eorum,  qua3  in  manura  aliis  tradila  non  sunt,  etiam  dispendio 
tertii:  quo  argument©,  alia  quanquam  in  specie,  usus  est  Senatus  Parisi- 
ensis,  apud  Chopin.  Et  hue  spectat  quod  Burgundus  tradit,  mobilia  sequi 
personam,  hoc  est  (inquit)  in  domicilio  ejus  existere,  et  non  alitor  quam 
cum  domicilio  transferri.  Tandem  ut  ad  immobiiia  transeam.  Fac  Jus 
tacita',  seu  legalis  hypothecaj  non  obtinere  idem  in  loco  rei  siltu,  quod  ob- 
tinet  in  loco  domicilii  debitoris,  dicendum  frustra  esse  creditorum,  qui 
hujusmodi  hypothecjc  obtentu  priorilatem  sibi  asseruerit :  cum  a^que  atque 
expressira  facto  hominis,  coram  uno  judicio,  hypothecs;  nexu  devinciri 
nequeunt  alterius  territorii  bona,  ita  nee  legis  ullius  potestas  est  afficere 
proedia  extera  ;  quod  Statuta  realia  territorium  non  egrediantur,  ut  supra 
tractatum  est.  Ita  si  Hollandus,  cui  generaliter  bona  debitoris  coram  quo- 
cunque  Hollandiaj  judicio,  hypothecic  data  sunt,  apud  nos  cum  reliquis 
creditoribus  experiatur  de  pradatione,  profutura  erit  ei  hypotheca  in  bonis, 
in  quacunque  Hollandia;  parte,  extra  districtum  Amstelodamensem,  sitis  ; 
non  autera  in  bonis  suppositis  territorio  nostratium,  quibus  nulla  subsistit 
hypotheca;  datio,  nisi  pacta  coram  judice  rei  sita;.  Contra  cum  apud  Hol- 
landos  hypotheca  generalis  extingnatur  alienatione,  non  juvabitur  creditor 
moribus  nostris,  quibus  res  ita  obligata  ad  emptores  transit  cum  suo  onere. 
Consimililer,  si  teneat  alibi  Consuetudo,  ut  in  bonis  debitoris  concurrant 
creditores,  nulla  habita  ratione  hypothecarum  quale  Statutum  profert  Flo- 
rentinum  Straccha.  Ex  lege  loci  rei  sita  dirimenda  creditorum  contentio." 
Rodenburg,  De  Div.  Statut.  lit,  2,  ch.  5,  (5>  10  ;  2  Boullenois,  Appx.  p.  47 
to  p.  51. 

CONFL.  40 


542  CONFLICT    OF   LAWS.  [CH.   VIII. 

depend  either  upon  local  ordinances,  or  upon  the  law  of 
the  situs  of  the  property ;  and  if  the  law  of  the  situs 
differs  from  the  ordinances  of  the  place,  where  the  par- 
ties create  the  hypothecation  or  privilege,  in  allowing 
or  disallowing  such  an  hypothecation  or  privilege,  the 
law  of  the  situs  must  govern.  In  regard  to  movables, 
they  are  presumed  to  have  their  situs  in  the  place  of 
the  domicil  of  the  owner ;  and  if  the  law  of  that  domicil 
gives  a  privilege  upon  them,  that  privilege  ought  to  be 
regarded  in  every  other  place  in  which  those  movables 
may  be  found.^  BouUenois  in  this  respect  adopts  the 
language  of  Lautenburg.  In  rebus  moUlihus  ohservari 
dehent  jura  illius  loci,  in  quo  illormn  dominus,  vel  creditor 
hdbet  domicilium,  etiam  quando  agitur  de  concursu  et  prwla- 
tione  creditorwn?  In  regard  to  immovables,  BouUenois 
adopts  the  doctrine,  that  all  preferences  and  privileges 
thereon  are  real,  and  are  therefore  governed  by  the  law 
rei  sitw? 

§  325  /".  John  Voet  has  treated  this  question  with 
great  fulness.  In  respect  to  priority  and  privileges  in 
cases  of  hypothecations,  he  insists,  that,  as  to  movable 
property,  the  law  of  the  domicil  of  the  debtor  ought 
to  govern  the  order  thereof,  as  well,  because  all 
movables  are  understood  to  be  in  the  place  where  the 
owner  lives,  and  are  to  be  governed  by  the  law  of  that 
place,  as  because  all  creditors,  who  ought  to  bring  their 
suit  in  the  tribunal  where  the  property  is,  (forum  rei,) 
are  deemed  in  their  contracts  to  have  had  reference  to 
the  place  of  domicil  of  the  debtor,  since  in  that  place 
the  debtor,  as  the  principal  forum,  ought  to   be   sued ; 


1  1  BouUenois,  Observ.  30,  p.  832,  833,  834. 

2  Id.  p.  834. 
y  Ibid. 


CH.  viil]  foreign  contracts.  543 

and  also  because  if  the  laws  of  the  place  where  the 
contract  is  made,  or  of  the  forum  in  which  the  contro- 
versy respecting  the  conflict  of  rights  and  preferences 
between  creditors  are  to  be  observed,  inexplicable  diffi- 
culties will  arise,  or  notorious  absurdities  will  be  fallen 
into ;  of  which  he  proceeds  to  give  some  illustrations. 
But  in  respect  to  immovables,  he  holds  that  the  law  of 
the  place  of  the  situs  ought  to  govern  in  all  questions 
of  priority  and  privileges.  ImmoUUa  regenda  esse  jure 
loci,  in  qm  sitce  sunt} 


1  J.  Voet,  ad  Pand.  Lib.  20,  lit.  4,  n.  38,  p.  904.  — The  whole  passage 
deserves  to  be  cited.  "  In  quaestione,  cujus  loci  statuta  in  praelatione  turn 
hypothecariorum  turn  chirographariorum  privilegio  munitorum  spectari  de- 
beant,  dicendum  videtur  secundum  fundamenta  generalia  in  tit.  de  consti- 
tut.  Princip.  parte  altera,  de  statutis  proposita.  In  mobilibus  debitoris 
bonis  ilium  observari  oportere  prselationis  ordinem,  qui  in  loco  domicilii 
debitoris  probatus  est  ;  turn  quia  mobilia  omnia,  ubicunque  existentia,  illic 
domino  sao  prsesentia  esse  intelliguntur,  ac  propterea  isto  quoque  jure  re- 
genda sunt ;  tum  quia  creditores  omnes,  qui  sequi  in  agendo  debent  forum 
rei,  etiam  raaxime  locum  domicilii  in  contrahendo  respexisse  videntur, 
quippe  in  quo  praecipue  debitor,  velut  in  foro  praeprimis  competente,  con- 
veniendus  est;  turn  denique,  quia,  si  leges  vel  loci  in  quo  contractum  est, 
velfori  in  quo  de  creditorum  prtelatione  acconcursu  disputatur,  observandas 
censueris,  aut  inexplicabilibus  et  difficultatibus  implicaturuses,autadnota- 
biles  delapsurus  absurditates.  Etenim,  si  contractuum  singulorum  loca  spec- 
tari debere  contendas,  explicari  non  poterit,  quid  fieri  debeat,  si  in  Hollandia, 
Frisia, Anglia,  Italia,  Hispania  diversi  per  eundem  debitorem  contractus  initi 
sint,  quarum  regionum  unaquajque  diversis  ex  parte,  quin  et  subinde  contra- 
riisde  protopraxia  legibus  utitur,  dumin  Anglia  aut  Hollandia  contrahens 
ex  legibus  Anglicanis  aut  HoUandicis  pritferri  desiderabit  ei,  qui  in  Frisia 
contraxit  ;  hie  vero  ex  Frisise  legibus  contrariis  potior  esse  velit  eo,  qui  in 
Hollandia  vel  Anglia  effecit  sibi  devinctum  debitorem.  Quod  si  locum, 
ubi  mobilia  proscribuntur,  et  judicium  concursus  inter  creditores  agitatur, 
spectandum  existimes  quasi  distributio  pecuniarum  inter  creditores  pars  et 
sequela  executionis  sit,  (posito,  quod  alibi,  quam  in  loco  domicilii  postre- 
mi  debitoris  obaerati  mobilia  vendi  et  lis  de  protopraxia  agitari  possit,  cujus 
contrarium  apud  nos  nunc  oblinere,  supra  x.  t.  num.  12.  dictum  est,)  ab- 
surdum  illud  inde  sequeretur,  quod  tunc  non  mobilium  tantum  sed  et  im- 
mobilium  intuitu  leges  loci,  in  quo  judicium  de  protopraxia  agitur,  obser- 
vandce  forent ;  cum  non  minus  distributio  pecuniae  ex  immobilibus,  quam 


644  CONFLICT   OF   LAWS.  [CH.  VIII. 

§  325  /.  Matthseus  holds,  in  a  great  measure,  the 
same  opinion,  and  has  discussed  the  subject  at  large. 
The  whole  passage  is  too  long  for  insertion  in  this 
place  ;  but  a  moderate  extract  will  present  his  views  in 
a  very  clear  manner.  Speaking  of  movables,  he  says  ; 
Quantum  igitur  ad  res  mobiles  attinet,  tametsi  omnes  sint 
ejiisdem  generis  atque  natiirce,  motii  tamen  et  qidete  discri- 
mina?'i  jjossiint.  Eanim  enim  alicemdlo  certo  loco  dispositcB^ 
hue  illuc  feruntur  trahinturve ;  veluti  merces  in  itinere 
deprehensw,  et  id  liodi^  fieri  solet,  arresto  reteixtw  :  alice 
vero  certo  loco  dispositce  quiescimt ;  veluti  instrumentiim  et 
siqyellex,  quam  pcderfam. :  frcediormn  instrnendorum  gratia 
in  iwovinciam  misit :  item  fierce  hestice,  et  jmces,  et  reliqua 
animalia,  quw  in  fiundis  hdberdur  fiodurce  et  propagationis 
gratia.  Qucccwique  ejus  generis  deprehenduntur,  id  certo 
loco  prcediove  afifixw  non  sint,  in  iis  hand  duUe  superior  de- 
finitio  olservanda  est.  Cum  enim  maxime  in  motu  sint, 
ac  inceHis  quasi  sedibus  vagentur,  nihil  proprius  est,  quam 
ut  in  disputatione  cle  prcerogativa  creditormn  spectemiis  domi- 
cilium  debiioris.     Quce  vera  loco  affi,xce,  aid  certis  posses- 


ex  mobilibus,  redactae  dici  deberet  executionis  sequela  aut  pars  ;  atque  ita 
fieret,  immobilianon  ex  lege  situs  regi,  sed  incerti  juris  subesse  disposi- 
tioni,  prout  in  hoc  vel  illo  loco,  diversis  juribus  utente,  contentio  fuerit 
inter  creditores  instituta  de  prselatione.  Quinimo,  posito  illo  jure,  quod 
judicium  universale  concursus  creditorum  in  eo  loco  ventilari  debeat,  in 
quo  debitor,  cum  moreretur  aut  foro  cederet,  domicilium  habuit,  esse  in  ar- 
bitrio  debitorispositum,  ut  migrando  de  loco  in  locum  creditores  non  privi- 
legiatos,  efficeret  privilegiatos,  hypothecam  legalem  faceret  aliisnasci,  aliis 
interire,  prout  aliud  atque  contrarium  domicilii  prioris  aut  rei  sila;  legibus 
jus  in  novissimi  domicilii  loco  viguerit :  quod  in  imraobilibus  loco  certo 
alligalis,  nee  arbitrio  domini  situm  mutantibus,  ferendum  non  est ;  sed 
potius  (cum  jam  ad  immobilia  nos  deduxerit  ratiocinium)  in  immobilium 
pretio  inter  creditores  secundum  cujusque  privilegium  distribuendo  servan- 
das  erunt  leges  locorum  illorum,  in  quibus  immobilia  singula  existunt,idque 
convenienter  leguliE  in  tit.  de  constit.  Princip.  parte  altera  de  statutis 
num.  12.  firmatoe,  ac  dictanti,  immobilia  regenda  esse  jure  loci,  in  quo  sita 
sunt." 


CH.  VIII.]  FOREIGN    CONTRACTS.  545 

sionihiis  aUrihdce  sunt,  cce  naturam  prwdiorum  sequuntw, 
ej usque  provincicc  esse  censentur,  in  qua  prcedia  sUa  sunt. 
Uncle  dicendum  videbatur,  in  liis  rebus  spectandas  esse  leges 
ejus  loci,  uli  prccdia  sita  sunt,  non  uU  domiciUum  debitor 
liabet}  Again,  referring  to  objections  which  might  be 
made,  he  says ;  Illud  etiam  objici  poiercd  definitioni  nos- 
trce  :  In  contractibus  spectandas  esse  leges  ejus  loci,  ubi 
contractum  est,  vcl  in  quern  solutio  destincda  est :  Ms  enim 
legibus  contrahentes  ultro  subjecisse  se  intelliguntur.  Igitur 
in  creditonm  quoque  contentione,  non  semper  leges  domicilii, 
sed  si  alibi  contractum  sit,  loci  contractus  sunt  observandw, 
Respondeo  ;  Si  ex  contractu  agatur,  spectari  quidem  leges 
ejus  loci,  ubi  contractum  est,  non  tamen  in  omnibus  contro- 
versiis.  Etenim,  si  de  solemnibus  quceratur,  si  de  loco,  de 
tempore,  et  modo  obligationis,  turn  quidem  locum  contractus 
observamus  :  sin  de  materia  obligationis,  seu  de  rebus,  qum 
in  cam  deducuntur,  ejus  loci  habenda  ratio  est,  ubi  res  sitce 
sunt.  jSitum  autem  cum  dicimus,  prccdia  denotamus  :  hose 
enim  p>roprih  sita  dicuntur,  non  etiam  res  mobiles.  In  dis- 
jjutatione  verb  creditorum  de  prcvrogativa,  quo  minus  locum 
contractus  spectemus,  ipsa  cpiodammodo  renim  natura  im- 
pedimento  est.  Quid  enim  si  obccratus  cum  multis  contrax- 
erit,  et  variis  quidem  in  locis,  vario  ac  diver  so  jure  utenti- 
bus  :  veluti  Romce,  Lugduni,  Antuerpice,  Amstelodami,  Dan- 
tisci,  Genuw,  etc.,  cpii  potcrit  spectari  locus  contractus,  et 
cijus  potissimum  loci  leges  spectabis  citra  manifestam  alto- 
rum  creditorum  injuriam  ?  At  locum  domicilii  debitoris  pos- 
sis  observare  citra  cujusquam  inju7iam,  dum  omnes  cujus- 
cunque  gentis  aut  nationis  cum  aliquo  debitore  contrahentes, 
domicitium  ejus  spectasse,  ac  fortunam  judiciorum  ibidem 
exjjerin  voluisse  videantur.     Postremo,  opponi  poterat,  non 


1  Mattheeus,  De  Auctionibus,  Lib.  1,  ch.  21,  n.  35,  36,  p.  295. 
46* 


546  CONFLICT    OF    LAWS.  [CH.  VIIL 

tarn  domiciUum  dehitoris  spedandmn  esse,  qiimn  eiim  locum, 
ubi  bona  proscribuntiir.  Execiitionis  enim  seu  pars,  seu  ap- 
jyendix,  et  sequela,  videtur  esse  ilia  distribidio  peciinianim 
inter  creditores.  Commimi  aidem  calcido  doctorum  iradiiur^ 
in  execidione  facienda  spectandimi  ewn  locum  iibi  executio 
sit.  Veriun  Jiunc  ohicem  itafaciU  removeUmus,  si  cogita- 
verimus  commwiam  illam  sententiam  de  ordine  et  solemnibus 
execiitionis  duntaxat  loqiii,  nan  etiam  de  ipsa  creditorum 
content'ione  et  causa,  quce  inter  eos  vertitur :  Jicec  enim  inci- 
dit  quidem  in  executionem,  ab  ordine  tamen  execidionis  sepor 
rata  est.  In  Us  autem,  quce  ad  causce  decisionem  pertinerd, 
non  illicb  locum  judicii,  sed  antiquiorem  cdiquem,  pida  domi- 
cilii, interdum  contractus,  aliquando  situm  rei  spectamus. 
Instari  poterat :  Si  ad  decisionem  causa,  pertinet  disimtatio 
ilia  creditorum,  jam  sententia  hcec  premetur  alio  argumento  : 
Nempe,  quod  in  decisoriis  litis  observandce  sint  leges  ejus 
loci,  ubi  contractum  est.  Sed  respondetur,  hoc  tum  proce- 
dere,  cum  inter  creditorem  et  debitorem  lis  vertitur :  cum 
verb  plures  creditores  ejusdem  debitoris  de  prcerogativa  dis- 
pidant,  locum  domicilii  debitorus  spectamus ;  quia  locum 
contractus  citra  injuriam  aliorum  spectarc  per  rerum  natu- 
ram  non  possumus  :  nullo  certe  modo,  cum  idem  debitor,  qui 
variis  in  hcis  negotiari  solet,  habuerit  variarum  gentium 
atque  hcorum  creditores :  puta  Italos,  Gallos,  Belgas,  Ger- 
manos,  Hispanos,  etc.  Hie  enim  constituere  non  possis, 
ciijus  potissimim  loci  leges  sint  sjyectatidcc  :  id  autem  omnium 
simid  hcorum  le/es  atque  mores  spectentur,  rerum  natura 
non  patiiur} 

S  325  m.  And,  then,  referring  to  immovables,  he 
says  ;  Quantum  ad  res  immobiles  attinet,  vidcndum,  an  recte 
separaverimus  hjpotliecam  a  privilegio :   ita  id  in  cestimandis 


1  Matthaeus,  De  Auctionibus,  Lib.  1,  ch.  21,  n.  37,  38,  39,  40,  p.  296, 
297,  298. 


CH.  VIII.]  FOEEIGN    CONTRACTS.  547 

viribiis  hypotliecce  spectemus  emu  locum,  uU  prwdium  sitimi 
est ;  in  privilegio  inter  hjpotliecarios  exercendo,  domiciUiim 
delitoris  ?  Argiimcntum  cnim,  quo  iisi  simius,  infirmius 
videtur :  Privilegium  concernit  personam  :  igitur  domiUiim 
dehitoris  in  eo  spectandum.  Quasi  verb  non  sit  duplex  pri- 
vilegioriim  ratio:  ita  ut  alia  quidem  personce,  alia  rei  sen 
caused  data  sint.  Deinde,  non  videtur  ilia  necessaria  conse- 
cutio :  privilegia  personam  conccrmint ;  igitur  personam 
conntantur,  quocunque  locorum  commigraverit.  Etcnim  illo 
duntaxat  jura  quce  personce  qualitatem  aliquam  imprimiinty 
comitari  personam  solent :  veluti  si  quis  minor,  fatuiis,  pro- 
digiis,  infaniis,  declaretur :  Vitiiim  cnim  hoc  perdurat,  et 
quocunque  locorum  te  contuleris,  circumferes  tecum  notam 
illam  et  qualitatem  in  loco  domicilii  tibi  impressam.  At  pti- 
vilegium,  quod  personce  conceditur,  nullam  qucditcdem  per- 
sonce imprimit,  nullam  notam  inurit :  comitari  ergo  per- 
sonam non  poterit  in  cam  provinciam,  in  cpia  fort^  privile- 
gium cessat.  jSed  imprimis  illiid  ohstcd,  quod  privilegium 
detiir  quidem  personm,  tamen  in  bonis  dehitoris  exercendum. 
Ut  autem  in  prcediis  debitoris  in  cdia  provincia  sitis  excrceam 
privilegium,  non  possunt  mild  tribuere  ii,  qui  in  loco  dimi- 
cilii  debitoris  jura  condunt :  cquippe  quorum  jurisdictioni 
ager  alterius  tenitorii  subjectus  non  sit.  Mobilia  duntaxat, 
quia  personam  comitcmtur,  jurisdictioni  eormn  subjecta  viden- 
tur,  quocunque  in  loco  reperiantur.  Itaque  si  mulier  nupse- 
rit  in  Frisia,  ubi  dotes  sunt,  dotiumque  pfjvilegia :  distra- 
hantur  mariti  prcedia  in  Gelria,  Hollandia,'  Trajecti,  ubi  ne 
dotes  quidem  verce  sunt,  nedum  dotium  privilegia  :  non  vide- 
tur mulier  inter  hipotliecarios  Jmbitura  privilegium,  quod 
lml}eret,  si  in  Frisia  sita  prcedia  distraJierentur.  Valde 
enim  absurdum  sit,  vclle  hijpotliecariis  earn  prcefcrri,  quam 
ne  numerant  quidem  Gelri  inter  lujpothecarios.  His  de 
causis  genercdius  concludendum,  sive  de  viribus  hgpothecce, 
sive  de  privilegio  inter  hgpothecarios  exercendo  loquamur. 


548  CONFLICT    OF    LAWS.  [CH.  VIIL 

in  jjrccdiis  spectiindas  esse  leges  ejus  loci,  iibi  froedia  sit  a 
sunt} 

§  325  n.  M^evius  adheres  to  the  same  rule  in  cases 
of  movables,  that  is  to  say,  that  the  law  of  the  domicil 
of  the  debtor  is  to  govern  in  all  cases  of  preferences 
and  privileges."  D'Argentre  adopts  the  same  opinion; 
Quare  statidum  de  lonis  mobilibus  vere  personale  est,et  loco 
domicilii  judicium  sumit ;  et  qiiodciincjue  Judex  domicilii  de 
eo  statuit,  nbigue  locum  ohtinct.^  Burgundiis  may  also 
fairly  be  presumed  to  hold  the  like  opinion.  De  caiero 
molilia  iU  esse  dicemus,  uhi  quis  instrimt  domicilium  ;  et 
ideo  quodcumque  Jiidex  domicilii  de  'iis  statiierit,  ttbique  loco- 
rum  oUinet,  sive,  quod  persona  ihi  est,  aut  esse,  semper  intel- 
ligitur,  sive  quod  ihi  rerum  suarum  suimncmi  collocavit.  Et 
sic  inteUigcndum  est,  quod  dicinms  mohilia  sequi  personam, 
hoc  est,  in  domicilio  ejus  existere,  et  non  aliter  quam  cum 
domicilio  transferri.  Nee  refert,  eadem  hona  in  loco  do- 
micilii repcriantur,  an  non}  Many  other  jurists  assert 
the  same  doctrine.^  Still,  however,  (as  has  been  already 
intimated,)  all  foreign  jurists  are  not  agreed  in  this  doc- 
trine, at  least  not  without  many  modifications  thereof.'' 

§  325  0.  But,  whatever  may  be  the  differences  of 
opinion  among  them,  as  to  the  operation  of  the  rights 
of  preference  or  privilege  of  creditors  upon  movable 
property,  situate  in  fact  in  a  foreign  country,  there 
seems  to  be  a  great  preponderance  of  authority,  although 
certainly  not  an  universal  agreement,  in  respect  to  im- 
movable property,  in  favor  of  the  doctrine,  that  the  law 


1  Matthaeus,  De  Auctionibus,  Lib.  1,  ch.  21,  n.  41,  p.  298,  299. 

-  Maevius,  ad  Jus,  Lubcsense,  Lib.  3,  tit.  1,  art.  11,  n.  23  to  n.  35. 

3  D'Argentr6,  de  Briton.  Leg.  Art.  218,  Gloss.  G,  n.  30,  p.  654. 

'1  Burgundus,  Tract.  2,  n.  21,  p.  113. 

^  1  Boullenois,  Observ.  30,  p.  834,  835,  840. 

^  Ante,  ^  322  b,  ^  322  c. 


en.  VIII.]  FOREIGN   CONTRACTS.  549 

of  the  place  rci  sitce  ought  to  prevail,  as  to  the  denial  or 
allowance  of  such  preferences  and  privileges.^  Paul 
Voet  expressed  the  general  sense,  when  he  said ;  Veyo 
immohUia  rcguntiu'  locormn  stutidls,  iibi  sita  ;  etiam  quoad 
ea,  si  de  wstimandd  hjijothccdy  aid  de  privilec/iis  inter  hjpo- 
thecarios  agaiur,  non  inspiciendus  erit  locus  domicilii,  vel 
dclitoiis,  vel  creditoris,  venim  locus  statidi,  uhijacent?  An 
easy  example  may  illustrate  the  importance  of  the  dis- 
tinction. Suppose  a  contract,  made  in  Massachusetts 
for  the  sale  of  lands  lying  in  New  York,  by  whose  laws 
the  vendor  has  a  lien  for  the  unpaid  purchase-money, 
and  by  the  laws  of  Massachusetts  there  would  in  such 
a  case  be  no  lien,  if  the  land  were  in  Massachusetts ; 
the  question  would  then  arise,  whether  any  lien  at- 
tached on  such  a  contract  on  the  land.  According  to 
the  opinions  of  the  foreign  jurists  already  referred  to, 
the  law  of  the  rei  sitw,  and  not  the  law  of  the  place  of 
the  contract  would  attach  upon  the  contract ;  and  con- 
sequently, a  lien  for  the  unpaid  purchase-money  would 
exist  on  the  lands  in  New  York,  although  no  such  lien 
would  exist  in  Massachusetts  under  or  in  virtue  of  the 
contract.^ 

§  326.  Lord  Ellenborough  has  laid  down  a  doctrine 
essentially  agreeing  with  that  of  Huberus.  "  We 
always  import,"  (says  he,)  "  together  with  their  per- 
sons, the  existing  relations  of  foreigners,  as  between 
themselves,  according  to  the  laws  of  their  own  coun- 
tries ;  except,  indeed,  where  those  laws  clash  with  the 


1  Ante,  ^  322  to  ^  325  m ;  Post,  ^  362  to  ^  373. 

2  P.  Voet,  de  Stat.  ^  9,  ch.  2,  n.  8,  p.  267,  edit.  1715  ;  Id.  p.  322,  edit. 
1661. 

3  See  Gilman  v.  Brown,  1  Mason,  R.  219,  220,  221 ;  S.  C.  4  Wlieat. 
R.  255. 


550  CONFLICT    OF   LAWS.  [CH.  VIIL 

lights  of  our  own  subjects  here,  and  one  or  other  of 
the  laws  must  necessarily  give  way ;  in  which  case  our 
own  is  entitled  to  the  preference.  This  having  been 
long  settled  in  principle,  and  laid  up  among  our  ac- 
knowledged rules  of  jurisprudence,  it  is  needless  to 
discuss  it  fxrther."  ^  The  Supreme  Court  of  Louisiana 
have  adopted  a  little  more  modified  doctrine,  coinciding 
exactly  with  that  of  Huberus ;  "  That,  in  a  conflict  of 
laws,  it  must  oftener  be  a  matter  of  doubt,  which 
should  prevail;  and,  that  whenever  that  doubt  does 
exist,  the  court,  which  decides,  will  prefer  the  law  of 
its  own  country  to  that  of  a  stranger."  And  if  the 
positive  laws  of  a  state  prohibit  particular  contracts 
from  having  effect  according  to  the  rules  of  the  country, 
where  they  are  made,  the  former  must  prevail."  ^ 

§  327.  Mr.  Chancellor  Kent  has  laid  down  the  same 
rule  in  his  Commentaries,  as  stated  by  Huberus  and 
Lord  Ellenborough,  and  has  said ;  "  But  on  this  subject 
of  conflicting  laws,  it  may  be  generally  observed,  that 
there  is  a  stubborn  principle  of  jurisprudence,  that  will 
often  intervene  and  act  with  controlling  efficacy.  This 
principle  is,  that  w^hen  the  Lex  loci  contractus  and  the 
Lex  fori,  as  to  conflicting  rights  acquired  in  each,  come 
in  direct  collision,  the  comity  of  nations  must  yield  to 
the  positive  law  of  the  land.  Li  tali  conflictu  magis  est, 
id  jus  nostrum,  quamjus  alicnum,  servemus."  ^  Mr.  Burge 
has  expressed  his  ow^n  exposition  of  the  same  doctrine 
in  the  following  terms.     It  may  be  stated  generally. 


1  Potter  V.  Brown,  5  East,  R.  120,  124. 

~  Mr.  Justice  Porter,  in  the  case  of  Saul  v.  His  Creditors,  17  Martin, 
R.  596. 

3  Id.  p.  586,  587. 

■1  2  Kent,  Comm.  Lect.  39,  p.  461,  3d  edit. 


CH.  VIII.]  FOEEIGN    CONTRACTS.  651 

that,  with  respect  to  contracts,  of  which  movable  pro- 
perty is  the  subject,  the  law  of  the  place,  in  which  the 
contract  is  made,  will  in  some  respects  exclusively 
prevail,  although  the  contract  is  to  be  performed  in 
another ;  and  that  in  those  respects,  in  which  it  does 
not  prevail,  the  law  of  the  place,  where  the  contract  is 
to  be  performed,  must  be  adopted.  But  this  conclusion 
is  subject  to  some  qualifications  and  exceptions.  If  a 
right,  which  is  claimed  as  resulting  from  the  contract, 
or  if  an  act  or  disposition  affect  the  interest  of  third 
parties,  as  the  creditors  of  the  owner,  resort  must  be 
had  to  the  law  of  his  domicil  to  determine,  whether 
that  right  exists,  and  whether  he  was  competent  to  do 
the  act  or  make  the  disposition.  A  preference  claimed 
by  a  creditor  on  the  estate  of  his  debtor,  by  virtue  of 
the  contract,  and  a  disposition  made  by  a  debtor,  which 
might  be  void  against  his  creditors,  are  instances  of  this 
exception.  The  law  of  a  foreign  country,  is  admitted, 
in  order  that  the  contract  may  receive  the  effect,  which 
the  parties  to  it  intended.  No  state,  however,  is  bound 
to  admit  a  foreign  law  even  for  this  purpose,  when  that 
law  would  contravene  its  own  positive  laws,  institu- 
tions, or  policy,  which  prohibit  such  a  contract,  or  when 
it  would  prejudice  the  rights  of  its  own  subjects."  ^ 

327  «.  A  question  involving  considerations  of  this 
nature  came  recently  before  the  Supreme  Court  of 
Louisiana.  It  was  a  suit  brought  in  Louisiana  upon  a 
bottomry  bond  of  a  peculiar  character,  given  by  the 
owner  of  a  steamboat  in  Cincinnati  (Ohio,)  and  pledg- 
ing the  vessel  for  the  repayment  of  a  sum  of  money 


•  1  .3  Burge,  Comm.  on  Col.  aiul  For.  Law,  Pt.  2,  ch.  20,  p.  778,  779; 
Id.  p.  770.  See  also  FceHx,  Conflict  des  Lois,  Revue  Etrang.  et  Fran^. 
Tom.  7,  1840,  ^  33,  p.  227,  228. 


552  CONFLICT    OF   LAWS.  [CH.  VIIL 

and  interest,  lent  to  the  owner  for  a  year.  The  steam- 
boat had  in  the  intermediate  time  been  sold  in  Ken- 
tucky to  a  purchaser  with  notice  of  the  lien,  and  she 
was  at  New  Orleans  at  the  time  of  the  suit  brought ; 
and  the  object  thereof  was  to  enforce  the  hypothecation 
or  lien  created  by  the  bond.  Various  objections  were 
taken  in  the  defence  ;  and  among  them  was  the  objec- 
tion, that  no  lien  was  created  in  such  a  case  by  the 
laws  of  Louisiana,  where  the  suit  was  brought.  Mr. 
Justice  Porter,  in  delivering  the  opinion  of  the  Court 
on  this  occasion,  said :  "  But  a  more  formidable  objec- 
tion has  been  raised  against  the  regularity  of  the  pro- 
ceedings. The  statutes  and  jurisprudence  of  Louisiana, 
it  is  contended,  only  confer  the  privilege  of  sequestra- 
tion to  enforce  liens  given  by  its  laws ;  and  that,  in  aid 
of  which  this  remedy  was  extended  here,  was  not  one, 
that  had  any  force,  or  conferred  any  privilege  in  our 
state,  though  it  might  have  that  effect  in  the  country, 
where  it  was  made."  "  The  objection  now  taken  raises 
a  distinction  in  cases  so  circumstanced,  -between  reme- 
dies before  and  after  judgment ;  and  we  confess  we 
are  unable  to  see  any  solid  grounds,  on  which  it  can 
rest.  If  it  be  true,  as  we  apprehend  it  is,  that  the 
Court  can  and  should  enforce  the  personal  obligation, 
which  a  party,  not  a  citizen  of  the  state,  may  have 
entered  into  in  another  country,  and  that  on  the  judg- 
ment so  rendered,  the  foreign  creditor  could  obtain  the 
benefit  of  all  writs  of  execution,  which  an  inhabitant 
of  Louisiana  might  resort  to  against  a  domestic  debtor, 
then  we  can  see  no  good  ground  for  refusing  the  auxi- 
liary process  in  the  first  instance ;  wdiether  it  be  an 
order  to  arrest  the  person  of  the  debtor,  and  hold  him 
to  bail,  or  a  writ  to  seize  the  property  brought  within 
the  jurisdiction  of  a  Court,  if  it  be  the  subject  of  con- 


CH.  VIII.]  FOREIGN    CONTRACTS.  553 

test.  Both  seem  to  rest  on  the  same  principles.  And 
a  familiar  illustration  of  the  commonly  received  opinion 
on  this  subject,  may  be  given  in  the  case  of  attach- 
ments, which  are  almost  every  day  resorted  to  in  aid 
of  the  foreign  creditor  against  the  foreign  debtor ;  and 
yet  there  is  nothing  in  our  law  more  expressly  giving 
that  remedy  to  the  stranger,  than  there  is  in  the  case 
of  sequestration."  After  taking  notice,  that  by  the 
laws  of  Ohio,  it  had  been  found,  that  the  bond  created 
a  lien  on  the  steamboat,  the  learned  Judge  proceeded 
to  say  ;  "  If  the  steamboat,  then,  had  remained  within 
the  State  of  Ohio,  the  evidence  satisfies  us,  the  plain- 
tiffs could  have  had  a  lien  on  her.  But  the  main 
difficulty  in  the  cause  still  remains.  She  was  sold  in 
the  State  of  Kentucky,  under  a  decree  of  one  of  the 
courts  of  that  State,  and  purchased  by  the  defendant 
at  the  sale.  It  is  admitted  on  all  hands,  that  this  sale 
was  legal  and  regularly  made,  and  the  question  is  not, 
what  was  the  effect  of  the  lien  in  the  country,  where 
the  contract  was  made,  nor  in  that,  where  it  is  sought 
to  be  enforced,  but  what  effect  it  had  in  the  State, 
where  the  defendant  acquired  title  to  the  property." 
He  then  examined  the  laws  of  Kentucky  on  the  sub- 
ject ;  and  concluded  in  the  following  words  :  "  The 
State  of  Kentucky,  we  presume,  gives  effect  to  liens, 
existing  on  property  brought  there  from  another  coun- 
try, on  the  principle  of  comity,  which  we  have  already 
noticed,  and  we  must  also  presume,  until  the  contrary 
be  shown,  that  she  admits  them  with  the  same  limita- 
tion, which  other  States  do  ;  namely,  that  they  shall 
not  work  an  injury  to  her  own  citizens.  To  ascertain, 
whether  they  do  or  not,  recurrence  must  be  had  to  her 
laws  and  policy  in  relation  to  contracts  made  within 
her  limits ;  for  we  take  the  true  principle  in  such  cases 


554  CONFLICT    OF    LAWS.  [CH.  VIII. 

to  be,  that  the  foreign  creditor,  who  has  a  lien,  shonld 
have  no  greater  or  no  less  privilege,  than  the  domestic 
creditor.  If,  for  example,  the  laws  of  Kentucky  re- 
quired no  record  to  be  made  of  liens  given  on  personal 
property  within  the  State,  she  would  not  require  regis- 
try on  the  part  of  the  stranger,  who  came  there  to 
enforce  a  mortgage  on  property,  on  which  he  had  a  lien 
in  another  country ;  for  if  she  did,  she  would  neither 
carry  the  contract  into  effect,  according  to  the  law  of 
the  country  where  it  was  made,  nor  according  to  her 
own.  If  this  be  true,  whatever  time  is  given  to  the 
domestic  creditor  to  record  his  lien,  should  be  given  to 
him,  who  comes  from  another  State  with  one,  if  his  lien 
be  recognized  as  valid,  when  enregistered,  and  his 
prayer  to  enforce  it  be  admitted,  as  we  are  told  by  the 
testimony  it  could  be."  The  court  accordingly  enforced 
the  lien  against  the  steamboat.^ 

§  327  b.  Another  case,  which  may  serve  to  illustrate 
the  difficulty  of  laying  down  any  universal  rule  on  the 
subject  of  contracts,  as  to  the  incidents  and  rights  which 
may  attach  to  or  against  third  persons,  residing  in  dif- 
ferent countries,  may  readily  be  stated,  as  it  is  one 
which  may  not  infrequently  occur  in  practice.  By  the 
law  of  England,  if  two  policies  are  underwritten  on  the 
same  ship  or  cargo  for  the  same  voyage,  to  the  full 
amount  of  the  property  at  risk,  it  is  treated  as  a  double 
insurance,  and  each  policy  is  valid,  without  any  refer- 
ence to  the  respective  dates  thereof  And  in  case  of  a 
loss,  the  insured  may  recover  the  whole  loss  from  the 
underwriters  on  either  policy,  at  his  own  election ;  and 


'  Ohio  Insur.  Company  v.  Edmondson,  5  Louis.  R.  295  to  305;  Ante, 
^  214. 


en.  VIII.]  FOREIGN   CONTRACTS.  555 

they  are  then  entitled  to  contribution  ^;;'o  i%dd  from  the 
underwriters  on  the  other  policy.^  Now,  in  France,  no 
such  rule  of  contribution  exists ;  but  the  policy  prior  in 
date  is,  in  case  of  a  double  insurance,  to  be  first  ex- 
hausted, and  if  that  is  sufficient  to  pay  the  whole  loss, 
there  is  no  right  to  recover  the  loss,  or  to  exact  contri- 
bution from  the  underwriters  on  the  policy  of  a  later 
date."  This  also  seems  to  be  the  general  rule  among 
most  of  the  maritime  nations  of  continental  Europe.^ 
Now,  let  us  suppose  that  two  policies,  of  different  dates, 
are  underwritten  on  the  same  ship  or  cargo,  the  one  in 
France,  and  the  other  in  England,  for  an  American 
owner,  on  the  same  voyage,  each  policy  being  for  a  sum 
equal  to  the  full  value  of  the  property  at  risk,  and  there 
should  be  a  total  loss  on  the  voyage  ;  the  question 
might  arise,  whether  the  English  underwriters  were  lia- 
ble at  all,  if  the  French  policy  was  prior  in  date  ;  and 
also,  whether,  if  liable,  they  could  claim  contribution 
from  the  French  underwriters ;  and  conversely,  the  ques- 
tion might  arise,  whether,  if  the  English  policy  was  prior 
in  date,  the  French  underwriters  were  liable  at  all ;  and 
if  liable,  whether  they  could  claim  contribution  from  the 
English  underwriters.  No  such  case  seems  as  yet  to 
have  undergone  any  judicial  decision.  But  probably  it 
would  be  held,  that  each  contract  was  to  be  exclusively 
construed  according  to  the  obligations  and  rights  cre- 
,  ated  by  the  Lex  loci  contractus  between  the  parties  them- 

1  Park  on  Insur.  ch.  15,  p.  Q80,  281,  5th  edit. ;  3  Kent,  Comm.  Lect. 
48,  p.  280,  281,  3d  edit.  ;  1  Marsh  on  Insur.  ch.  4,  (^  4,  p.  146,  2d  edit.  ; 
2  Phillips  on  Insur.  p.  59,  60,  2d  edit. 

2  3  Kent,  Comm.  Lect.  48,  p.  280,  281,  3d  edit.  ;  Code  dc  Commerce, 
art.  359,  Ordin.  of  Louis  14th,  1681  ;  2  Valin,  Comm.  Lib.  3,  lit.  6,  art. 
23,  24,  25,  p.  72,  73. 

3  1  Emejigon,  Assur.  ch.  1,  ^  7,  p.  23  ;  1  Marsh,  on  Insur.  ch.  4,  §  4, 
p.  146,  2d  edit,  note  a. 


55G  CONFLICT    OF    LAWS..  [CH.    VIII. 

selves,  without  any  regard  to  the  collateral  rights  and  obli- 
gations which  might  arise  between  the  underwriters,  if 
both  contracts  were  made  in  the  same  country.  If  a  dif- 
ferent rule  were  adopted,  there  might  be  an  entire  want  of 
reciprocity  in  its  operation.  Thus,  if  the  French  policy 
were  prior  in  date,  and  a  recovery  were  had  thereon 
against  the  French  underwriters,  they  might  have  contri- 
bution from  the  English  underwriters ;  and  yet,  if  a 
recovery  were  had  against  the  English  underwriters,  they 
could  not  have  contribution  from  the  French  under- 
writers. On  the  other  hand,  if  the  English  policy  were 
prior  in  date,  the  French  underwriters  might  be  ex- 
empted from  all  liability  for  the  loss,  or  if  liable,  might 
recover  a  contribution  from  the  English  underwriters  ; 
at  the  same  time,  that  if  a  recovery  were  had  against 
the  English  underwriters,  they  would  not  be  entitled  to 
any  contribution  against  the  French  underwriters.  How- 
ever, this  case  is  merely  propounded  as  one  on  which 
the  author  professes  to  have  no  fixed  opinion  ;  and  is 
designed  rather  to  awaken  inquiry,  than  to  satisfy 
doubts.^ 

§  328.  This  subject  will  be  resumed  hereafter  under 
other  heads.^  But  the  remarks  of  a  learned  Scottish 
Judge  ^  may  here  be  properly  introduced  as  exceed- 
ingly pertinent  to  the  present  discussion.  "  The  appli- 
cation of  the  Lex  loci  to  contracts,  although  general,  is 


1  In  some  of  the  present  American  policies,  there  is  now  what  is  com- 
monly called  a  priority  clause,  similar  in  effect  to  the  French  law.  The 
very  question,  therefore,  may  arise  in  the  case  of  a  double  insurance  by 
different  policies  in  England,  and  in  a  state  using  the  priority  clause,  or 
in  the  latter  state,  and  a  state,  which  uses  the  common  English  policy, 
and  is  governed  by  its  laws. 

2  Post,  ^  401,  402,  423  a,  ^  524  to  ^  527. 

3  Lord  Robertson  in  the  case  of  Mrs.  Levett  ia  Fergusson  o»  Marr.  and 
Div.  385,  397. 


CH.  VIII.]  FOREIGN    CONTRACTS.  557 

not  universal.  It  does  not  take  place,  where  the  par- 
ties, at  the  time  of  entering  into  the  contract,  had  the 
law  of  another  kingdom  in  view  ;  or  where  the  Lex  loci 
is  in  itself  unjust,  or  conlra  honos  mores  ;  or  contrary  to 
the  public  law  of  the  State,  as  regarding  the  interests 
of  religion,  or  morality,  or  the  general  well  being  of 
society." 

§  329.  It  may  also  be  stated,  although  the  proposi- 
tion has  been  already  incidentally  considered,  that,  when 
a  debt  is  contracted  in  a  foreign  country,  it  is  not  to  be 
deemed  exclusively  payable  there,  unless  there  is  in 
the  contract  itself  some  stipulation  to  that  effect.^  On_ 
the  contrary,  a  debt  contracted  in  a  particular  country, 
and  not  limited  to  a  particular  place  of  payment,  is 
by  operation  of  law  payable  everywhere,  and  may  be 
enforced,  wherever  the  debtor  or  his  property  can  be 
found.' 

§  330.  Having  considered  the  principles  applicable  to 
the  nature,  validity,  interpretation,  and  incidents  and 
effects  of  contracts,  w^e  are  next  led  to  the  consideration 
of  the  manner  in  which  they  may  be  discharged,  and 
what  matters  upon  the  merits  will  constitute  a  good  de- 
fence to  them.  I  say  upon  the  merits ;  for  the  objec- 
tions arising  from  the  law  of  the  State  where  the  suit 
is  brought,  {Lex  fori,)  such  as  the  limitations  of  reme- 
dies, and  the  forms  and  modes  of  suit,  will  constitute  a 
separate  head  of  inquiry.^ 

§  331.  And,  here,  the  general  rule  is,  that  a  defence 
or  discharge,  good  by  the  law  of  the  place  where  the 


1  Ante,  ^  272  a,  ^  278  a,  ^  295,  ^  317  ;  Don  v.  Lippmann,  5  Clark  & 
Fin.  R.  1,  12,  13. 

2  See  Blake  v.  Williams,  6  Pick.  R.  286,  315  ;  ante,  ^  272  a,  ^  317  ; 
Don  V.  Lippmann,  5  Clark  &  Fin.  1,  12,  13. 

3  Post,  ^  524  to  ^  527. 

47* 


558  CONFLICT    OF   LAWS.  [CH.  VIII. 

contract  is  made,  or  is  to  be  performed,  is  to  be  held  of 
equal  validity  in  every  other  place,  where  the  question 
may  come  to  be  litigated.^  John  Voet  has  laid  down 
this  doctrine  in  the  broadest  terms.  Si  adversus  con- 
tradum  aliudve  negotiiim  gestiim  factwnve  restitutio  desidere- 
tur,  diini  quis  aid  mctu,  aut  dolo,  aid  errore  lapsus,  damnum 
sensU  contrahendo,  transigendo,  solvendo,  fidejiibendo,  hcredi- 
tatem  adeimdo,  aliove  simili  modo  ;  rede  interprctes  statidsse 
arUtror,  leges  regionis,  in  qud  contixictiim  gestiimve  est,  id, 
contra  quod  restitidio  petitur,  locum  sihi  dehere  vindicare  in 
terminandd  ipsd  restitidionis  controversid  ;  sive  res  illcE,  de 
qidhus  contractum  est,  et  in  quibiis  Imsio  contigit,  eodem  in 
loco,  sive  alibi  sitce  sint.  Nee  intercrit  idrmn  Icesio  circa 
res  ipsas  contigerit,  velidi  pluris  minorisve,  quam  cequum  est, 
errore  J  usto  distradas,  an  vcro  propter  neglcda  solennia  in 
loci  contractus  desiderata.  Si  tamen  contractus  implcmentimi 
non  in  ipso  contractus  loco  fieri  debeat,  sed  ad  locum 
alium  sit  destinatimi,  non  loci  contradiis,  sed  imp}l€menti, 
leges  spedandas  esse  ratio  suadet ;  id  ita  secundum  cujus 
loci  jura  implementum  accipere  dehuit  contractus,  juxta  ejus 
etiam  leges  resolvatur^  Casaregis  in  substance  lays 
down  the  same  doctrine  ;  ^  and  liuberus  throughout  im- 
plies it,''  as,  indeed,  does  Dumoulin.^ 


i  2  Bell,  Comm.  B.  8,  ch.  3,  §  1267,  p.  692,  4th  edit.  ;  Id.  p.  688,  5th 
edit. ;  3  Burge;  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  21,  ^  7,  p.  874 
to  p.  886  ;  Id.  ch.  22,  p.  924  to  p.  929.— As  to  what  will  constitute  a  dis- 
charge in  foreign  countries,  and  especially  by  novation,  by  confusion,  by 
set-off  or  compensation,  by  payment  or  consignation,  and  by  relapse,  see 
3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  21,  ^  1  to  ^^  6,  p.  781 
to  p.  880.     See  also  Bartsch  v.  Atwaler,  1  Connect.  R.  409. 

2  J.  Voet  ad  Pand.  Lib.  4.  tit.  1,  ^  29,  p.  210. 

3  See  Casaregis,  Disc.  179,  ^  60,  61. 

4  Huberus,  Lib.  1,  tit.  3,  ^  3,  7  ;  J.  Voet,  De  Statut.  ^  9,  ch.  2,  ^S  20, 
p.  275,  edit.  1715  ;  Id.  p.  332,  333,  edit.  1661. 

5  2  Boullenois,  Observ.  46,  p.  402;  Molin.  Comm.  ad  Cod.  Lib.  1,  tit. 
1,1.1;  Conclus.  de  Stat.  Tom.  3,  p.  554,  edit.  1681. 


CH.  VIII.]  FOREIGN   CONTRACTS.  559 

§  331  «.  Burgundus  says;  Idem  ergo  de  solidiomhiis 
dicendimi ;  scilicet,  id  in  omnibus^  qiice  ex  ea  stmt,  aid  inde 
oriwitur,  cud  circa  illam  consist unt,  aid  alicjuo  modo  affinia 
simt,  consiietiidinem  loci  spcctemus,  nhi  eandem  implendcau 
convenit.  Itaqiie  ex  solidione  sunt  solemnia,  valor  rei  dehi- 
tce^pretium  monetw  ;  ex  solidione  oriimiur  prcestcdio  apochce^ 
antigrajjJtt,  simiUaquc.  Affinia  solidioni  sunt,  prcescriplio, 
ohlatio  rei  dcbitce,  consignatio,  novcdio,  delegcdio,  et  cjusmodi} 
Ea,  vcro,  quce  ad  complcmentum  vel  execidionem  contractus 
sjjectcmt,  vel  ahsolido  eo  superveniiint,  sola  a  statido  loci  di- 
rigi,  in  quo  peragenda  est  solidio.^  INIany  other  foreign 
jurists  maintain  the  same  doctrine."^ 

§  332.  In  England  and  America  the  same  rule  has 
been  adopted,  and  acted  on  with  a  most  liberal  justice/ 
Thus,  infancy,  if  a  valid  defence  by  the  Lex  loci  contrac- 
tus,  will  be  a  valid  defence  everywhere.^  A  tender 
and  refusal,  good  by  the  same  law  either  as  a  full  dis- 
charge, or  as  a  present  fulfilment  of  the  contract,  will 
be  respected  everywhere.^  Payment  in  paper  money 
bills,  or  in  other  things,  if  good  by  the  same  law,  will 
be  deemed  a  sufficient  payment  everywhere.^  And,  on 
the  other  hand,  where  a  payment  by  negotiable  bills  or 


1  Burgundus,  Tract.  4,  n.  27,  28,  p.  114,  115,  IIG. 

2  Id.  n.  29,  p.  116. 

^  3  Barge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  21,  ^  7,  p.  874, 
875,  876. 

*  2  Kent,  Comm.  Lect.  39,  p.  459,  3d  edit.  ;  Potter  v.  Brown,  5  East, 
124  ;  Dwarris  on  Stat.  Pt.  2,  p.  650,  651  ;  2  Bell,  Comm.  ^  1267,  p.  691, 
692,  4th  edit.  ;  Id.  p.  688,  5th  edit. 

s  Thomson  t;.  Kelcham,  8  Johns.  R.  189  ;  Male  v.  Roberts,  3  Esp.  R. 
163. 

6  Warder  v.  Arell,  2  Wash.  Virg.  R.  282,  293,  &c. 

"^  Warder  v.  Arell,  2  Wash.  Virg.  R.  282,  293 ;  1  Brown,  Ch.  R.  370  ; 
Seabright  v.  Calbraith,  4  Dall.  325  ;  Bartsch  v.  Atwater,  1  Connect.  R. 
409. 


560  CONFLICT    OF   LAWS.  [CH.  VIIL 

notes  is,  bj  the  Lex  loci,  held  to  be  conditional  pay- 
ment only,  it  will  be  so  held,  even  in  states,  where  such 
payment  under  the  domestic  law  would  be  held  abso- 
lute.^ So,  if  by  the  law  of  the  place  of  a  contract  (even 
although  negotiable)  equitable  defences  are  allowed  in 
favor  of  the  maker,  any  subsequent  indorsement  will 
not  change  his  rights  in  regard  to  the  holder.^  The 
latter  must  take  it  cum  onere? 

§  333.  The  case  of  an  acceptance  of  a  bill  of  ex- 
change in  a  foreign  country  affords  another  illustration. 
Although  by  our  law  it  is  absolute,  and  binding  in 
every  event ;  yet,  if  by  that  of  the  foreign  country  it 
is  merely  a  qualified  contract,  it  is  governed  by  that 
law  in  all  its  consequences.''  Acceptances  are  deemed 
contracts  in  the  country,  where  they  are  made ;  and 
the  payments  are  regulated  by  the  law  thereof^ 

§  334,  But,  although  the  general  rule  is  clear,  as 
above  stated,  that  a  discharge  by  the  law  of  a  place, 
where  a  contract  is  made,  is  a  discharge  everywhere ; 
yet  there  are  exceptions  to  the  rule,  which  every  coun- 
try will  enforce,  or  not,  according  to  its  own  discretion 
and  sense  of  justice.^  Thus,  where  a  contract  was  made 
in  England  between  two  Danish  subjects,  one  of  whom 
was  domiciled  in  England ;   and  afterwards,  during  a 


^  Bartsch  v.  Atwater,  1  Connect.  R.  409  ;  Descadillas  v.  Harris,  8 
Greenl.  R.  298.  See  other  cases  cited,  3  Burge,  Comra.  on  Col.  and  For. 
Law,  Pt.  2,  oh.  21,  ^  7,  p.  876,  877,  878. 

2  Ante,  ^  317. 

3  Ory  V.  Winter,  16  Martin,  R.  277.  See  also  Evans  v.  Gray,  12  Mar- 
tin, R.  475  ;  Charters  v.  Cairnes,  16  ]\Iartin,  R.  1. 

4  Burrows  v.  Jemino,  2  Str.  R.  733  ;  S.  C.  2  Eq.  Abridg.  525.  See 
Van  Cleff  v.  Terasson,  3  Pick.  R.  12;  Ellicott  v.  Early,  3  Gill,  431. 

5  Lewis  V.  Owen,  4  B.  &  Aid.  654  ;  5  Pardessns,  §  1492  ;  ante,  ^  307, 
^  317;  Cooper,  v.  Earl  of  Waldegrave,  2  Beavan,  R.  282. 

6  Post,  §  337. 


CH.  VIII.]  FOREIGN    CONTRACTS.  561 

war  between  England  and  Denmark,  the  Danish  govern- 
ment confiscated  the  debt,  and  required  it  to  be  paid 
by  the  debtor,  who  was  then  in  Denmark,  and  he  paid 
it  accordingly  ;  the  English  Court  of  King's  Bench  on  a 
suit,  brought  in  England  after  the  peace,  by  the  credi- 
tor against  the  debtor,  held,  that  the  payment  to  the 
Danish  government  was  no  discharge,  although  it  would 
have  been  so  by  the  laws  of  Denmark,  upon  the  ground, 
that  such  a  confiscation  was  not  justified  by  the  law  of 
nations.^ 

§  335.  The  most  important,  or  at  least  most  frequent 
cases  of  discharges  of  contracts,  occurring  in  practice, 
are  those  of  discharges  arising  from  matters  ex  2^ost 
facto ;  such  as  a  discharge  from  the  contract  upon  the 
subsequent  insolvency  or  bankruptcy  of  the  contracting 
party.  And  here  the  general  rule  is,  that  a  discharge 
from  the  contract  according  to  the  law  of  the  place 
where  it  is  made,  or  where  it  is  to  be  performed, 
is  good  everywhere,  and  extinguishes  the  contract.^ 
This  doctrine  was  fully  recognized  in  the  English  law 
by  Lord  Mansfield  (and  it  doubtless  had  a  much  earlier 
existence)  in  a  formulary  of  language,  which  has  been 
since  often  quoted  as  a  general  axiom  of  jurisprudence. 
"  It  is  a  general  principle,"  said  he,  "  that,  where  there 


1  Wolfe  V.  Oxholme,  6  M.  &  Selw.  R.  92.  See  post,  ^  348,  349,  350, 
351.  It  is  wholly  unnecessary  here  to  consider,  whether  the  confiscation 
of  debts  by  an  enemy  is  conformable,  or  not,  to  the  law  of  nations.  That 
is  a  point  belonging  to  the  public  law  of  nations,  and  underwent  very  grave 
discussions  in  England,  in  the  case  in  6  Maule  &  Selw.  92,  as  well  as  in 
the  American  Courts,  during  the  late  war  with  Great  Britain.  See  the 
Emulous,  1  Gallison,  R.  563  ;  S.  C.  on  appeal.  Brown  v.  United  States, 
8  Cranch,  R.  110. 

2  2  Kent,  Comm.  Lect.  37,  p.  392,  393,  3d  edit. ;  2  Bell,  Comm.  ^  1267, 
p.  691  to  695,  4lh  edit.  ;  Id.  p.  688,  5th  edit. ;  1  Chitly  on  Comm.  and 
Manuf.  ch.  12,  p.  654. 


562  CONFLICT    OF    LAWS.  [CH.   VIII. 

is  a  discharge  by  the  law  of  one  countiy,  it  will  be  a 
discharge  in  another."  '^  The  expression  is  too  broad, 
and  should  have  the  qualification  annexed  which  the 
case  before  him  required,  and  which  has  been  uniformly 
understood,  namely,  that  it  is  a  discharge  in  the  country 
where  the  contract  was  made  or  was  to  be  performed. 
And  so  it  was  interpreted  by  Lord  EUenborough  in  a 
much  later  case.  "  The  rule,"  said  he,  "  was  well  laid 
down  by  Lord  Mansfield,  in  Ballantine  v.  Golding,  that 
what  is  a  discharge  of  a  debt  in  the  country  where  it 
was  contracted,  is  a  discharge  of  it  everywhere."  ^  This 
doctrine  is  also  firmly  established  and  generally  recog- 
nized in  America.^  By  some  judges  the  doctrine  has 
been  put  upon  the  implied  consent  of  the  parties  in 
making  the  contract,  that  they  would  be  governed  as 
to  all  its  effects  by  the  Lex  loci  coirtr actus ^  By  others 
it  has  been  put  upon  the  more  firm  and  solid  basis  of 


1  Ballantine  v.  Golding,  1  Coop.  Bank.  Laws,  p.  347,  5th  edit.,  p.  515, 
4th  edit.  ;  13  Mass.  R.  7  ;  2  Bell,  Comm.  \  1267,  p.  691,  692,  4th  edit. ; 
Id.  p.  688,  5th  edit. 

2  Potter  V.  Brown,  5  East,  124,  130.  See  Hunter  v.  Potts,  4  T.  R. 
182  ;  Quin  v.  O'Keefe,  2  H.  Bl.  553. 

3  Sec  on  this  point  Smith  v.  Smith,  2  Johns.  R.  235  ;  Hicks  v.  Brown, 
12  Johns.  R.  142  ;  Van  Reimsdyk  v.  Kane,  1  Gallis.  R.  371  ;  Blanchard 
V.  Russell,  13  Mass.  R.  1  ;  Baker  v.  Wheaton,  5  Mass.  R.  511  ;  Watson 
V.  Bourne,  10  Mass.  R.  337;  4  Cowen,  Rep.  note,  p.  515  ;  Green  v.  Sat- 
miento,  Peters,  Cir.  R.  74  ;  McMenomy  v.  Murray,  3  Johns.  Ch.  R.  435, 
440,  441 ;  Walsh  v.  Nourse,  5  Binn.  R.  381 ;  Sturgis  v.  Crowninshield, 
4  Wheaton,  R.  ^22;  Ogden  u.  Saunders,  12  Wheaton,  R.  213,  358; 
2  Kent,  Comm.  Lect.  27,  p.  392,  393  ;  Id.  Lect.  30,  p.  459,  3d  edit.  ; 
Hall  V.  Boardman,  14  New  Ilamp.  38;  Very  v.  IMcHenry,  29  Maine, 
214;  Atwater  ?;.  Townsend,  4  Connect.  R.  47;  Hempstead  v.  Reed, 
6  Connect.  R.  480  ;  Houghton  v.  Page,  2  Neu^  Hamp.  R.  42  ;  Dyer  v. 
Hunt,  5  New  Hamp.  R.  401  ;  2  Bell,  Comm.  ^S  1267,  p.  691,  692,  693» 
4lh  edit.  ;  Id.  p.  688,  5th  edit. 

4  See  ante,  ^  261  ;  Blanchard  u.  Russell,  13  Mass.  R.  1,  4,  5  ;  Pren- 
tiss V,  Savage,  13  Mass.  R.  20,  23. 


CH.  VIII.]  FOREIGN   CONTRACTS.  563 

the  sovereign  operation  of  the  local  law  upon  all  con- 
tracts made  within  its  sovereignty;  and  the  indispensa- 
ble comity  which  all  other  nations  are  accustomed  to 
exercise  towards  such  laws  whenever  they  are  brought 
into  question  either  as  to  contracts,  or  to  rights,  or  to 
propert3^^ 

§  33G.  The  doctrine  has  been  stated  in  a  more  gene- 
ral form  by  a  late  learned  American  Judge,  who  said  ; 
"  It  may  be  assumed,  as  a  rule  affecting  all  personal 
contracts,  that  they  are  subject  to  all  the  consequences 
attached  to  contracts  of  a  similar  nature  by  the  laws 
of  the  country  where  they  are  made,  if  the  contractiug 
party  is  a  subject  of  or  resident  in  that  country  where 
it  is  entered  into,  and  no  provision  is  introduced  to 
refer  to  the  laws  of  another  country."  ^  This  is  not, 
perhaps,  in  strictness  of  language,  entirely  correct. 
There  are  many  consequences  flowing  from  contracts  in 
the  place  where  they  are  made,  which  do  not  accom- 
pany them  everywhere,  and  are  not  of  universal  obliga- 
tion.^ Remedies  are  a  consequence  of  contracts  when 
broken ;  but,  as  we  shall  hereafter  see,  they  are  go- 
verned by  different  rules  from  rights."^  And  the  rights, 
given  by  the  law  of  the  place  of  the  contract,  are  not 
always  deemed  of  universal  obligation  or  validity. 
Marriage,  for  instance,  is  admitted  to  be  a  valid  con- 
tract everywhere  when  it  is  valid  by  the  law  of  the 
place  where  it  is  celebrated.^  But,  as  we  have  seen, 
all   the    consequences,   attached    to   marriage   in   one 


^  Poller  V.  Brown,  5  East,  R.  124  ;  Ante,^  261. 
~  Mr.  Chief  Juslice  Parker,  in  delivering  the  opinion  of  ihe  Court  in 
ilie  case  of  Blanchard  v.  Russell,  13  Mass.  R.  1,  5. 

3  Ante,  (}325  to  ^  327. 

4  Post,  ^  55G  to  ^  575. 

5  Ante,  ^  111,  113,  ^  121  to  ^  125. 


564  CONFLICT    OF   LAWS.  [CH.  VIIL 

country  do  not  follow  it  into  other  countries.^  In 
Scotland  a  subsequent  marriage  legitimates  children 
antecedently  born  ;  but  this  consequence  has  not  yet 
been  (as  we  have  seen)  finally  adjudged  in  England  to 
the  extent  of  making  such  antenuptial  children  legiti- 
mate, so  as  to  be  entitled  to  inherit  lands  of  their 
parents  situate  in  England.  Adhiic  suh  judice  lis  cst^ 
So,  the  indissolubility  of  marriage  by  the  law  of  one 
country  w^ill  not  attach  to  it  everywhere.^ 

§  337.  And  even  in  regard  to  common  contracts  of 
a  different  nature,  the  general  rule,  as  to  the  conse- 
quences of  them,  must  receive  many  qualifications  and 
limitations  resulting  from  the  public  policy  or  the 
domestic  laws  of  other  States  w^here  they  are  sought  to 
be  enforced,  and  the  right  and  duty  of  self-protection 
against  unjust  foreign  legislation."*  If,  for  example,  a 
country,  where  a  contract  w^as  made,  should,  under  the 
pretence  of  a  general  bankrupt  act,  authorize  a  dis- 
charge from  all  contracts  made  with  foreigners,  and 
should  at  the  same  time  exclude  the  latter  from  all 
participation  with  domestic  creditors  in  the  assets ;  it 
cannot  be  presumed  that  such  an  act  would  be  held  a 
valid  discharge  in  the  countries  to  which  such  foreigners 
belonged.^  And  certainly  the  priorities  and  privileges 
annexed  by  the  laws  of  particular  States  to   certain 


1  See  Ante,  ^  145  to  ^  190;  Fergusson  on  Marr.  and  Div.  359,  360, 
361,  397,  398,  399,  402,  414  ;  Conway  v.  Beazley,  3  Ilagg.  Ecc.  R.  639. 

2  Doe  dem.  BirtwhisUe  v.  Vardill,  5  B.  &  Cresw.  438  ;  S.  C,  9  Bligh, 
R.  403  ;  ante,  ^  87,  93,  94  ;  1  Hertii  Opera,  De  Collis.  Leg.  ^  4,  §  15, 
p.  129,  edit.  1737;  Id.  p.  183,  184,  edit.  I71(i. 

3  Ante,  i}  215  to  ^  230. 

4  Ante,  ^  325  to  ^  327,  ^  334. 

3  Blanchard  v.  Russell,  13  Mass.  R.  1,0;  Ilaberus,  De  Conflict.  Leg. 
Lib.  1,  tit.  3,  ^  11. 


CH.  VIII.]  FOREIGN    CONTRACTS.  565 

classes  of  debts  contracted  therein,  are  not  generally 
admitted  to  have  the  same  preeminence  over  debts  con- 
tracted in  another  country  which  is  called  upon  to 
enforce  them.^  Nor  are  the  courts  of  any  State  under 
any  obligation  to  give  effect  to  a  discharge  of  a  foreign 
debtor,  where,  under  its  own  laws,  the  creditor  has  pre- 
viously^ acquired  a  right  to  proceed  against  his  property 
within  its  own  territorj'.- 

§  338.  When  we  speak  of  the  discharge  of  a  debt  in 
the  country  where  it  is  contracted,  being  a  discharge 
thereof  everywhere,  care  must  be  taken  to  distinguish 
between  cases  where,  by  the  Lex  loci  contractiis,  there 
is  a  virtual  or  direct  extinguishment  of  the  debt  itself; 
and  where  there  is  only  a  partial  extinguishment  of  the 
remedy  thereon.  By  the  bankrupt  laws  of  England, 
and  by  the  corresponding  insolvent  laws  of  some  of 
the  United  States,  an  absolute  discharge  from  all  rights 
and  remedies  of  the  creditors  is  provided  for,  as  part 
of  the  system ;  and,  therefore,  the  whole  obligation  of 
the  contract  is  deemed,  ijiso  facto,  extinguished.^  But 
there  are  insolvent  laws,  and  other  special  systems,  both 
in  Europe  and  America,  which  fall  short  of  this  extent 
and  operation.  In  some  cases,  the  person  only  is  libe- 
rated from  future  imprisonment  and  responsibility ;  in 
others,  particular  portions  of  property  only  are  exempt- 
ed ;  and  in  others,  again,  a  mixed  system,  embracing 


1  See  ante,  ^  322  to  ^  327  ;  Huberus,  De  Conflict.  Leg.  Lib.  1,  tit.  3, 
Ml- 

2  Tappan  v.  Poor,  15  Mass.  R.  410  ;  Le  Chevalier  v.  Lynch,  Doug.  R. 
170.  But  see  Hunter  v.  Potts,  1  T.  R.  182;  S.  P.  Bl.  402;  ante, 
§  325  to  ^  327. 

3  See  2  Kent,  Comra.  Lect.  37,  p.  389  to  p.  402,  3d  edit. ;  3  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  22,  p.  886  to  p.  929. 

CONFL.  48 


566  CONFLICT    OF   LAWS.  [CH.  VIIL 

some  postponed  or  modified  liabilities  both  of  the  per- 
son and  property,  prevails.^ 

§  339.  Now,  in  all  these  cases,  where  there  is  not 
any  positive  extinguishment,  or  any  virtual  extinguish- 
ment, of  all  rights  and  remedies  of  the  creditors,  the 
contract  is  not  deemed  to  be  extinguished  ;  and,  there- 
fore, it  may  be  enforced  (as  we  shall  hereafter  more 
fully  see)  in  other  countries.^  By  the  Roman  law  a 
Cessio  Bonorum  of  the  debtor  was  not  a  discharge  of 
the  debt,  unless  the  property  ceded  was  to  the  full  suffi- 
cient for  that  purpose.  It  otherwise  operated  only  as  a 
discharge,  pro  tanto,  and  exonerated  the  debtor  from 
imprisonment.  Qui  bonis  cesserint,  (says  the  Code,)  nisi 
solidiim  creditor  reciperit,  non  sunt  liherati.  In  eo  enim 
tantiimmodo  hoc  heneficium  eis  prodest,  ne  jiidicati  detra- 
Jiantur  in  carcerem'^  Huberus  informs  us,  that  in  Hol- 
land a  Cessio  Bonorum  does  not  even  exempt  from  im- 
prisonment, unless  the  creditors  assent.  Secundum  jus 
nostrum  Cessio  Bonotiim,  invitis  creditonhus,  debitorem  a 
carcere  publico  non  liberat ;  ^  and    Heineccius    proclaims 


1  See  1  Domat,  Civ.  Law,  B.  4,  tit.  5,  §  1  ;  Morris  v.  Eves,  11  Mar- 
tin, R.  750.  See  Mather  «.  Bush,  16  Johns.  R.  424,  note  ;  2  Bell,  Comm. 
ch.  5,  ^  1162  to  ^  1164,  p.  563  to  p.  567,  4th  edit. ;  Id.  p.  580  to  p.  597, 
5th  edit.  ;  Phillips  v.  Allan,  8  B.  &  Cressvv.  477;  2  Kent,  Comm.  Lect. 
37,  p.  389  to  p.  404,  3d  edit.  ;  2  Burge,  Comm.  on  Col.  and  For.  Law, 
Pt.  2,  ch.  22,  p.  886  to  p.  904. 

2  Judd  V.  Porter,  7  Greenl.  R.  (Bennett's  Ed.)  337;  Boston  Type 
Foundery  v.  Wallack,  8  Pick.  R.  186  ;  Coffin  v.  Coffin,  16  Pick.  R.  323  ; 
post,  \  340  to  §  352. 

3  Cod.  Lib.  7,  tit.  71,  1.  1  ;  1  Domat,  Civ.  Law,  B.  4,  lit.  5,  ^  1,  n.  1, 
2.  See  Mather  v.  Bush,  16  Johns.  R.  424,  note  (b.)  ;  2  Bell,  Comm. 
ch.  5,  ^  1162  to  ^  1164,  p.  563  to  p.  567,  4lh  edit.  ;  Id.  p.  580  to  p.  598, 
5th  edit. 

4  Huberus,  Tom.  3,  lib.  42,  tit.  3,  i^i  1,  ^  3,  note;  Ex  Parte  Burton, 
1  Atk.  255 ;  McMenomy  v.  Murray,  3  Johns.  Ch.  R.  442 ;  Voet,  ad  Pand. 
Lib.  42,  tit.  3,  §  8  ;  Le  Roy  r.  Crowinshield,  2  Mason,  R.  160.  — Lord 


CH.  VIII.]  FOREIGN    CONTRACTS.  567 

the  same  as  the  law  of  some  parts  of  Germany.^  The 
Scottish  law  conforms  to  the  Roman  Code  in  its  leading 
outlines;^  and  the  modern  Code  of  France  adopts  the 
same  system.^  An  Insolvent  Act,  or  Bankrupt  Act,  or 
Cesdo  Bonorum,  which  only  absolves  the  person  of  the 
debtor  from  imprisonment,  but  not  his  future  property, 
or,  which  only  suspends  remedies  against  either  the  one 
or  the  other  for  a  limited  period,  is  not  to  be  deemed  a 
discharge  from  the  contract,  and  its  operation  is  (as  we 
shall  presently  see)  purely  intra-territorial.^ 


Mansfield  is  reported  to  have  said,  in  Ballantyne  v.  Gelding,  (1  Cooke, 
Bank.  Laws,  p.  347,  5th  edit.,  p.  515,  4th  edit.)  "  That  he  remembered  a 
case  in  Chancery,  of  a  Cessio  Bonorum  in  Holland,  which  is  held  a  dis- 
charge in  that  country,  and  it  had  the  same  effect  here."  The  case  allud- 
ed to  is  most  probably  Ex  parte  Burton,  (1  Atk.  R.  255.)  The  law  of 
Holland  is  the  reverse  of  what  his  Lordship  is  here  supposed  to  affirm,  as 
the  case  in  1  Atk.  R.  225,  and  the  citations  from  Huberus  and  Voet  esta- 
blish. Whether  the  error  is  in  the  Reporter,  or  in  Lord  Mansfield  him- 
self, may  well  be  questioned.  Mr.  Henry  has  given  a  sketch  of  the  pre- 
sent law  of  France,  as  to  the  Cessio  Bonorum  in  cases  of  foreign  con- 
tracts, which  certainly  has  some  peculiarities,  not  conforming  to  the 
general  principles  of  international  law  adopted  in  other  nations.  Henry 
on  Foreign  Law,  Appx.  p.  2.50,  See  Pardessus,  art.  1324  to  1328.  The 
Cessio  Bonorum  of  Scotland  is  (it  seems)  a  mere  discharge  of  the  person. 
See  2  Bell,  Comm.  ch.  5,  p.  563,  &c.  4th  edit.  ;  Id.  p.  580,  &c.  5th  edit.  ; 
Phillips  V.  Allan,  8  Barn.  &  Cressw.  479. 

J  Heinecc.  Elem.  Jur.  Civ.  ad  Pand.  Lib.  42,  tit.  3,  ^  252,  254,  p.  6  ; 
3  Johns.  Ch.  R.  441,  442. 

2  Erskine,  Inst.  B.  4,  tit.  3,  ^2G,  27  ;  2  Bell,  Comm.  ch.  5,  ^  1162  to 
§  1164,  p.  563  to  p.  567,  4th  edit.  ;  Id.  p.  580,  5th  edit. 

3  Code  Civil  of  France,  art.  1265  and  1270  ;  Merlin,  Repert.  Cession 
de  Biens. 

■*  Tap  pan  t;.  Poor,  15  Mass.  R.  419  ;  Morris  v.  Eves,  11  Martin,  R. 
730  ;  Boston  Type  Foundery  u.Wallack,  8  Pick.  R.  186  ;  Judd  v.  Porter, 
7  Greenl.  R.  337  ;  Hinckley  v.  Morean,  3  Mason,  R.  88  ;  Titus  v.  Ho- 
bart,  5  Mason,  R.  378  ;  1  Kent,  Comm.  Lect.  19,  p.  420,  422,  3d  edit.  ; 
2  Bell,  Comm.  ^  1 162  to  »5>  1161,  p.  562,  567,  694,  4th  edit.  ;  Id.  p.  580 
to.p.  598,  5lh  edit.  ;  Mason  v.  Ilaile,  12  Wheat.  R.  370  ;  2  Kent,  Comm. 
Lect.  37,  p.  391  to  p.  401,  3d  edit.  ;  Phillips  v.  Allan,  8  Barn.  &  Cressw. 
479  ;  Ex   parte   Burton,   1  Atk.  R.  255  ;  Huberus,  Lib.  42,  tit.  3,  §  5  ; 


568  CONFLICT    OF   LAWS.  [CH.  VIIL 

§  340.  The  general  form  in  which  the  doctrine  is  ex- 
pressed, that  a  discharge  of  a  contract  by  the  law  of 
the  place  where  it  is  made,  is  a  discharge  everywhere, 
seems  to  preclude  any  consideration  of  the  question, 
between  what  parties  it  is  made ;  whether  between  citi- 
zens, or  between  a  citizen  and  a  foreigner,  or  between 
foreigners.  The  continental  jurists  recognize  no  dis- 
tinction in  the  cases.  The  English  decisions  are  un- 
derstood to  maintain  the  universality  of  the  doctrine, 
whatever  may  be  the  allegiance  of  the  country  of  the 
creditor.^  And  a  like  doctrine  would  seem  generally 
to  be  maintained  in  America."  There  are,  however, 
some  cases  in  which  a  more  limited  doctrine  would 
seem  to  be  laid  down ;  and  which  appear  to  confine  it 
to  cases  of  a  discharge  from  contracts  between  citizens 
of  the  same  State.  Thus,  in  one  case,  it  was  laid  down 
by  the  Supreme  Court  of  Massachusetts,  that  if,  when 
the  contract  was  made,  the  promisee  was  not  a  citizen 
of  the  State  where  it  was  made,  he  would  not  be  bound 
by  the  laws  of  such  State  in  any  other  State ;  and, 
therefore,  that  a  discharge  there  would  not  bind  him  or 
his  rights.^     In  another  case  the  same  learned  Court 


Heineccii  Elem.  ad  Pand.  Tom.  3,  P,  6,  Lib.  42,  tit.  3,  §  253  ;  3  Burge, 
Comtn.  on  Col.  and  For.  Law,  Pt.  2,  ch.  22,  p.  924  to  p.  929  ;  White  v. 
Canfield,  7  Johns.  R.  117  ;  James  v.  Allen,  1  Dall.  R.  188  ;  Quin  v. 
O'Keefe,  2  H.  Bl.  553  ;  Le  Roy  v.  Crowninshiekl,  2  Mason,  R.  160  ; 
Wright  V.  Paton,  10  Johns.  R.  300  ;  Peck  v.  Ilozier,  14  Johns.  R.  346  ; 
Walsh  V.  Nourse,  5  Binn.  R.  381. 

1  See  Mason  v.  Haile,  12  Wheaton,  R.  300  ;  Potter  v.  Brown,  5  East, 
R.  124. 

2  See  Robinson  v.  Bland,  1  W.  Black.  R.  258  ;  Blanchard  v.  Russell, 
13  Mass.  R,  1  ;  2  Johns.  R.  235  ;  2  Kent,  Comm.  Lect.  37,  p.  392,  393, 
3d  edit.  ;  Ory  v.  Winter,  16  Martin,  R.  277  ;  Sherrill  v.  Hopkins, 
1  Cowen,  R.  103,  107. 

3  Baker  V.  Wheaton,  5  Mass.  R.  511. 


CH.  VIII.]  FOREIGN    CONTRACTS.  569 

said,  that  a  discharge  of  the  contract  can  only  operate 
where  the  law  is  made  by  an  authority  common  to  the 
creditor  and  the  debtor  in  all  respects ;  where  both  are 
citizens  and  subjects.^  But  this  qualification  of  the  doc- 
trine (which  was  only  incidentally  argued  in  those  cases) 
was  afterwards  deliberately  overruled  by  the  same  Court; 
and  the  general  doctrine  was  established  in  its  univer- 
sality.- The  qualification  seems,  however,  again  to  have 
been  asserted  in  a  more  recent  decision  of  the  same 
Court ;  upon  grounds  not  very  clearly  defined,  or  per- 
haps not  entirely  satisfactory,  unless  the  case  is  to  be 
governed  by  the  decisions  of  the  Supreme  Court  of  the 
United  States  upon  the  subject  of  discharges  under 
insolvent  laws,  with  reference  to  the  Constitution  of  the 
United  States.^    It  has  been  expressly  denied  by  other 


1  Watson  V.  Bourne,  10  Mass.  R.  337,  340. 

2  Blanchard  v.  Russell,  13  Mass.  R.  1,  10,  11,  12. 

3  Braynard  v.  Marshall,  8  Pick.  R.  194.  — The  case  was  a  negotiable 
promissory  note,  made  by  A.,  in  New  York,  to  B.,  or  order  ;  the  note  was 
afterwards  indorsed  to  C,  in  Massachusetts,  who  sued  A.,  the  maker, 
there,  and  he  pleaded  his  discharge  under  the  insolvent  laws  of  New 
York.  On  that  occasion,  Mr.  Chief  Justice  Parker,  in  delivering  the 
opinion  of  the  Court,  declaring  the  discharge  no  bar  to  the  suit,  said  : 
"  The  questions  which  arise  out  of  the  subject  of  State  insolvent  laws, 
and  the  effect  of  discharges  under  them,  have  been  so  long  unsettled  in 
this  Commonwealth,  owing  to  the  unsatisfactory  character  of  the  decisions 
of  the  Supreme  Court  of  the  United  States,  which  ought  to  govern  cases 
of  this  nature,  that  we  have  waited  with  anxiety  for  a  revision  of  all  the 
cases  by  that  high  court,  and  a  final  adjudication  upon  a  subject  so  univer- 
sally interesting,  and  hitherto  involved  in  so  much  perplexity.  The  case 
of  Ogden  v.  Saunders  seemed,  in  its  progress,  to  promise  such  a  result, 
but  unhappily,  on  some  of  the  points  which  the  case  presented,  the  law  is 
left  as  uncertain  as  it  was  before.  One  thing,  however,  we  understand  to 
have  been  clearly  decided  by  a  majority  of  the  justices  of  that  court,  and 
virtually  by  all,  (as  those  who  admit  no  validity  at  all  to  such  laws  may  be 
considered  as  uniting  with  those  who  give  them  only  a  limited  operation,) 
which  is,  that  discharges  under  such  laws  have  no  effect  without  or  beyond 
the  territory  of  the  State  where  they  are  obtained,  or  against  a  party  not 

48* 


570  CONFLICT    OF   LAWS.  [CH.  "VIIL 

learned  State  Courts.^     In  commenting  upon  some  of 
the  cases  in  which,  upon  questions  of  discharge,  con- 


a  citizen  of  that  State,  or  where  the  suit  shall  be  brought  in  a  court  of  the 
United  States,  or  of  any  State  other  than  that  in  which  the  proceedings 
took  place,  notwithstanding  the  contract,  on  which  the  discharge  was  in- 
tended to  operate,  was  entered  into  and  was  to  be  performed  in  the  Stale 
in  which  the  discharge  was  granted.  Now  this  law,  thus  settled,  is  bind- 
ing upon  this  Court,  as  well  on  account  of  the  nature  of  the  question, 
which  is  peculiarly  proper  for  the  decision  of  the  highest  court  of  the 
nation,  as  because  the  case  itself,  unless  restrained  by  the  smallnessof  the 
sum  in  controversy,  may  be  carried  to  that  court  by  writ  of  error,  and  our 
judgment  be  reversed  ;  it  being  a  question  of  which,  by  ^  25,  of  the  judi- 
ciary act  of  the  United  States,  (of  September  24,  1789,)  that  court  has 
jurisdiction.  But  even  if  we  were  not  inclined  to  repose  on  the  decision 
in  Ogden  v.  Saunders,  but  considered  ourselves  at  liberty  to  resort  to 
general  principles,  we  are  disposed  to  think  that  the  defence  set  up  under 
the  certificate  in  this  case  could  not  prevail.  It  does  not  come  within  the 
case  of  Blanchard  v.  Russell,  in  which  the  contract  was  made  in  New 
York,  by  a  citizen  of  that  State,  and  was  to  be  performed  there,  it  not 
being  transferable  in  its  nature,  being  matter  of  account.  A  negotiable 
instrument,  made  in  New  York,  and  indorsed  for  a  valuable  considera- 
tion to  a  citizen  of  Massachusetts  before  an  application  for  the  benefit 
of  the  insolvent  law,  ought  not  to  be  discharged  under  the  process 
provided  by  that  law.  It  is  a  debt  payable  anywhere,  by  the  very  nature 
of  the  contract,  and  it  is  a  promise  to  whosoever  shall  be  the  holder  of  the 
note.  At  the  time  of  the  defendant's  application  for  a  discharge,  his  cre- 
ditor upon  this  note  was  a  Massachusetts  man,  and  according  to  the  case 
of  Baker  v.  Wheaton,  (5  Mass.  R.  509,)  the  certificate  would  be  no  bar 
to  the  action.  The  principle  of  this  case  was  fully  recognized  and  adopt- 
ed in  the  case  of  Watson  u.  Bourne,  (10  Mass.  R.  337.)  Nor  is  there 
any  thing  in  the  case  of  Blanchard  v.  Russell  to  controvert  these  decisions, 
whatever  may  have  been  said,  arguendo,  by  tlie  judge  who  delivered  the 
opinion.  The  contract  in  that  case  was  in  its  nature  to  be  performed  in 
New  York,  and  so  was  to  be  governed  entirely  by  the  laws  of  that  State. 
The  case  before  us  is  that  of  a  negotiable  promissory  note,  given  in  the 
first  place  by  a  citizen  of  New  York  to  a  person  resident  there,  by  whom 
it  was  immediately  indorsed  to  a  citizen  of  Massachusetts.  The  promisor 
became,  immediately  upon  the  indorsement,  the  debtor  to  the  indorsee, 
who  was  not  amenable  to  the  laws  of  New  York,  where  the  application 
was  made  for  relief  under  the  insolvent  law."  See  Ogden  i;.  Saunders, 
12  Wheaton,  R.  213,  358  ;  post,  ^  3-11,  313,  344. 

1  Ory  V.  Winter,  IG  Martin,  R.  277  ;  Sherrill  v.  Hopkins,  1  Cowen,R. 
103,  107. 


CH.  VIII.]  FOREIGN   CONTRACTS.         '  571 

siderable  importance  has  been  attached  to  the  circum- 
stance, that  one  or  both  of  the  parties  were  inhabitants 
of,  and  domiciled  in,  the  State  or  country  where  the  con- 
tract was  made,  the  Supreme  Court  of  New  York  have 
said:  "All  these  cases  stand  upon  a  principle  entirely 
independent  of  that  circumstance.  It  is  that  of  the  Lex 
loci  contractus,  that  the  place  where  the  contract  is  made 
must  govern  the  construction  of  the  contract ;  and  that 
whether  the  parties  to  the  contract  are  inhabitants  of 
that  place  or  not.  The  rule  is  not  founded  upon  the 
allegiance  due  from  citizens  or  subjects  to  their  respect- 
ive governments,  but  upon  the  presumption  of  law,  that 
the  parties  to  a  contract  are  conusant  of  the  laws  of  the 
country  where  the  contract  is  made."  ' 

§  341.  Under  the  peculiar  structure  of  the  Constitu- 
tion of  the  United  States,  prohibiting  the  States  from 
passing  laws  impairing  the  obligation  of  contracts,  it 
has  been  decided,  that  a  discharge,  under  the  insolvent 
laws  of  the  State  where  the  contract  was  made,  will  not 
operate  as  a  discharge  of  the  contract,  unless  it  was 
made  between  citizens  of  the  same  State.  It  cannot, 
therefore,  discharge  a  contract  made  with  a  citizen  of 
another  State.^  But  this  doctrine  is  wholly  inapplica- 
ble to  contracts  and  discharges  in  foreign  countries, 
which  must,  therefore,  be  decided  upon  the  general  prin- 
ciples of  international  law.^ 


1  Sherrill  v.  Hopkins,  1  Cowen,  R.  102,  108. 

2  Ogden  V.  Saunders,  12  Wheaton,  R.  358  to  369  ;  Boyle  v.  Zacharie, 
6  Peters,  R.  348  ;  Agnew  v.  Piatt,  15  Pick.  417  ;  2  Kent,  Comm.  Lect. 
37,  p.  392,  393,  3d  edit.  ;  3  Story,  Comm.  on  Const.  '^S  1S34  ;  1  Kent, 
Comm.  Lect.  9,  p.  418,  422,  3d  edit. 

3  Sec  Very  v.  McHenry,  29  Maine,  R.  214. 


572  CONFLICT    OF   LAWS.  '      [CH.  VIIL 

§  342.  The  converse  doctrine  is  equally  well  esta- 
blished, viz.,  that  a  discharge  of  a  contract  by  the  law 
of  a  place  where  the  contract  w\as  not  made,  or  to  be 
performed,  will  not  be  a  discharge  of  it  in  any  other 
country.'  Thus  it  has  been  held  in  England,  that  a 
discharge  of  contract,  made  there,  under  an  insolvent 
act  of  the  State  of  Maryland,  is  no  bar  to  a  suit  upon 
the  contract  in  the  courts  of  England.-  On  that  occa- 
sion Lord  Kenyon  said  :  "  It  is  impossible  to  say,  that 
a  contract,  made  in  one  country,  is  to  be  governed  by 
the  laws  of  another.  It  might  as  well  be  contended, 
that,  if  the  State  of  Maryland  had  enacted  that  no  debts 
due  from  its  own  subjects  to  the  subjects  of  England 
should  be  paid,  the  plaintiff  would  have  been  bound  by 
it.  This  is  the  case  of  a  contract  lawfully  made  by  a 
subject  in  this  country,  w^hich  he  resorts  to  a  court  of 
justice  to  enforce  ;  and  the  only  answer  given  is,  that  a 
law  has  been  made  in  a  foreign  country  to  discharge 
these  defendants  from  their  debts,  on  condition  of  their 
having  relinquished  all  their  property  to  their  creditors. 
But,  how  is  that  an  answer  to  a  subject  of  this  country, 
suing  on  a  lawful  contract  made  here  ?  How  can  it  be 
pretended,  that  he  is  bound  by  a  condition,  to  which  he 
has  given  no  assent,  either  express  or  implied?"^  In 
America,  the    same   doctrine    has  obtained    the    full- 


'  See  2  Bell,  Comm.  ^  1267,  p.  G91  to  p.  695,  4th  edit.  ;  Id.  p.  688  to 
p.  692,  5th  edit.  ;  Phillips  v.  Allan,  8  B.  &  Cressw.  479  ;  Lewis  v.  Owen, 
4  Barn.  &  Aid.  654  ;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch. 
22,  p.  924  to  p.  929  ;  Quelin  v.  Moisson,  1  Knapp,  R.  265,  note.  Rose 
V.  McLeod,  4  S.  &  D,  311,  cited  3  Burge,  Comm.  ubi  supra,  p.  927,  928. 

-  Smith  V.  Buchanan,  1  East,  R.  6,  11. 

3  Smith  V.  Buchanan,  1  East,  R.  6,  11  ;  Lewis  v.  Owen,  4  Barn.  & 
Aid.  654  ;  Phillips  v.  Allan,  8  Barn.  &  Cressw.  477. 


CH.  VIII.]  FOREIGN   CONTRACTS.  ^' ^ 

est  sanction.^     It  is  also  clearly  established  iu  Scot- 
land.^ 

§  343.  The  subject  of  negotiable  paper  is  generally 
governed  by  the  same  principles.  Wherever  the  con- 
tract between  the  particular  parties  is  made,  the  law  of 
the  place  will  operate,  as  well  in  respect  to  the  dis- 
charge as  to  the  obligation  thereof.  A  nice  question, 
however,  has  recently  arisen  on  this  subject,  in  a  case 
already  mentioned.^  A  negotiable  note  was  made  at 
New  York  between  persons  resident  there,  and  was 
payable  generally;  and  the  payee  subsequently  in- 
dorsed the  note  to  a  citizen  of  Massachusetts,  by  whom  a 
suit  was  brought  in  the  State  court  of  the  latter  State 
against  the  maker.'  One  point  of  the  argument  was, 
whether  a  discharge  of  the  maker,  under  the  insolvent 
laws  of  New  York,  operated  as  a  bar  to  the  suit  ?  The 
case  was  decided  upon  another  ground.  But  the  Court 
expressed  a  clear  opinion,  that  it  did  not ;  and  said : 
"  It  is  a  debt  payable  anywhere  by  the  very  nature  of 
the  contract ;  and  it  is  a  promise  to  whoever  shall  be 
the  holder  of  the  note."  "  The  promisor  became,  imme- 
diately upon  the  indorsement,  the   debtor  to  the  in- 


1  Van  Raugh  v.  Van  Arsdaln,  3  Cain.  R.  154  ;  Frey  v.  Kirk,  4  Gill  & 
Johns.  R.  509°  Green  v.  Sarmiento,  Peters,  Cir.C.  R.  74 ;  Le  Roy  v.  Crown- 
inshield,  2  Mason,  R.  151  ;  Smith  v.  Smith,  2  Johns.  R.  235  ;  Ellicott  v. 
Early,  3  Gill,  439  ;  Bradford  v.  Farrand,  13  Mass.  R.  18;  2  Kent,  Coram. 
Lect.  37,  p.  392,  393  ;  Id.  Lect.  39,  p.  458,  459,  3d  edit.  ;  2  Bell,  Comm. 
^  1267,  p.  692,  693,  4th  edit.  ;  Id.  p.  688  to  692,  5th  edit.  ;  3  Burge, 
Comm.  on  Col.  &  For.  Law,  Ft.  2,  ch.  22,  p.  924  to  p.  929;  Rose  v. 
McLeod,  4  S.  &  D.  311,  cited  in  3  Barge,  Comm.  928,  929. 

2  2  Bell,  Comm.  ^  1267,  p:  692,  693,  4th  edit.  ;  Id.  p.  GS8  to  692,  5th 
edition. 

3  See  Aymaru.  Sheldon,  12  Wend.  R.  439. 

4  Ante,  \  317,  §  340. 


674  CONFLICT    OF   LAWS.  [CH.  VIIL 

dorsee,  who  was  not  amenable  to  the  laws  of  New  York, 
where  the  discharge  was  obtained."  ^ 

§  344.  It  is  difficult  (as  has  been  already  intimated) 
to  perceive  the  ground  upon  which  this  doctrine  can  be 
maintained,  as  a  doctrine  of  public  law.^  The  Court 
admit  that  a  debt  contracted  in  New  York,  and  not  ne- 
gotiable, would  be  extinguished  by  such  a  discharge ; 
although  such  a  debt  is  by  its  very  nature  payable 
everywhere,  as  debts  have  no  locality.  As  between 
the  original  parties,  (the  maker  and  the  payee,)  the 
same  result  would  follow.  How,  then,  can  the  indorse- 
ment vary  it  ?  It  does  not  create  a  new  contract  be- 
tween the  maker  and  the  indorsee  in  the  place  of  the 
indorsement.  The  rights  of  the  indorsee  spring  from, 
and  under,  the  original  contract,  and  are  a  component 
part  of  it.  The  original  contract  promises  to  pay  the 
indorsee,  as  much  as  the  payee,  and  from  the  first  of 
its  existence.  The  indorsement  is  but  a  substitution  of 
the  indorsee  for  the  payee ;  and  it  transfers  over  the 
old  liability,  and  creates  no  new  liability  of  the  maker.^ 
If  the  indorsement  created  a  new  contract  in  the  place 
where  it  was  made,  between  the  maker  afid  the  indorsee, 
then  the  validity,  obligation,  and  interpretation  of  the 
contract  would  be  governed  by  the  law  of  the  place  of 
the  indorsement,  and  not  by  that  of  the  place  where  the 
note  was  originally  made.  It  would  not,  then,  amount 
to  a  transfer  of  the  old  contract,  but  to  the  creation  of 
a  new  one,  which,  from  a  conflict  of  laws,  not  usual  in 
different  States,  would,  or  might,  involve  obligations 


1  Braynard  v.  Marshall,  8  Pick.  R.  194.     See  Ogden  v.  Saunders,  12 
Whcaton,  R.  359,  362,  363,  364  ;  ante,  §  317,  ^  340. 

2  Ante,  ^  340. 

3  Polhier,  De  Change,  art.  22  ;  ante,  ^  317. 


CH.  VIII.]  FOREIGN    CONTRACTS.  575 

and  duties  wholly  different  from,  and  even  incompati- 
ble with,  the  original  contract.  Nay,  the  maker  might, 
upon  the  same  instrument,  incur  the  most  opposite 
responsibilities  to  different  holders,  according  to  the  law 
of  the  different  places  where  the  indorsement  might  be 
made.^ 

§  345.  Such  a  doctrine  has  never  been  propounded 
in  an}^  common-law  authority,  nor  ever  been  supported 
by  the  opinion  of  any  foreign  jurist.  The  same 
principle  w^ould  apply  to  general  negotiable  accept- 
ances as  to  negotiable  notes  ;  for  the  maker  stands 
in  the  same  predicament  as  the  acceptor.  Yet  no 
one  ever  supposed  that  an  indorsement  after  an  ac- 
ceptance ever  varied  the  rights  or  obligations  of  the 
acceptor.  It  is,  as  to  all  persons  who  become  holders, 
in  whatever  country,  treated  as  a  contract  made  by  the 
acceptor  in  the  country  where  such  acceptance  is  made.^ 
Yet  the  acceptance  being  general,  payment  may  be 
required  in  any  place  where  the  holder  shall  demand  it. 
The  other  point,  that  the  indorsement  was  to  a  citizen 
of  another  State,  is  equally  inadmissible.  The  question 
is  not,  whether  he  is  bound  by  the  laws  of  New  York 
generally ;  but,  whether  he  can,  in  opposition  to  them, 
avail  himself  of  a  contract  made  under  the  sovereignty 
of  that  State,  and  vary  its  validity,  obligation,  interpre- 
tation, and  negotiability,  as  governed  by  those  laws.  If 
the  payee  had  been  a  citizen  of  Massachusetts,  and  the 
note  had  been  made  by  the  maker  in  New  York,  there 
could  be  no  doubt  that  the  contract  would  still  be  go- 
verned by  the  laws  of  New  York,  in  regard  to  the  payee. 
What  difference,  then,  can  it  make,  that  the  indorsee  is 
a  citizen  of  another  State,  if  he  cannot  show  that  his 

•  Ante,  ^  314,  316,  317.  2  Ante,  ^  314,  317. 


576  CONFLICT    OF    LAWS.  [CH.  VIIL 

contract  has  its  origin  there  ?  In  short,  the  doctrine  of 
this  case  is  wholly  repugnant  to  that  maintained  by  the 
same  Court  in  another  case,  which  was  most  maturely 
considered,  and  in  which  the  argument  in  its  favor  was 
repelled.  The  Court  there  declared  their  opinion  to  be, 
that  full  effect  ought  to  be  given  to  such  discharges,  as 
to  all  contracts  made  within  the  State  where  they  are 
authorized,  although  the  creditor  should  be  a  citizen  of 
another  State. ^ 

§  346.  The  Supreme  Court  of  Louisiana  have  adopted 
the  same  reasoning  ;  and  held,  that,  where  a  negotiable 
promissory  note  was  made  in  one  State,  and  was  in- 
dorsed in  vunother  State  to  a  citizen  of  the  latter,  the 
contract  was  governed  by  the  law  of  the  place  where 
the  note  was  made,  and  not  by  that  of  the  place  where 
the  indorsement  was  made.  "We  see  nothing"  (said 
the  Court)  "  in  the  circumstance  of  the  rights  of  one  of 
the  parties  being  transferred  to  the  citizens  of  another 
State,  which  can  take  the  case  out  of  the  general  prin- 
ciple." It  is  a  demand  made  under  an  agreement  (a" 
note)  entered  into  in  a  foreign  State  ;  and  consequently 
the  party  claiming  rights  under  it,  must  take  it  with  all 
the  limitations  to  which  it  was  subject  in  the  j)lace 
where  it  was  made  ;  and  that,  although  he  be  one  of  our 
citizens."  -  This  is  certainly  in  conformity  to  what  is 
deemed  settled  doctrine  in  England,  as  well  as  in  some 
other  States  in  America.^     It  was  taken  for  granted  by 


1  Elanchard  v.  Russell,   13  Mass.  R.  1,  11,  12.     See  also  Prentice  v. 
Savage,  13  Mass.  R.  20,  23,  24  ;  ante,  §  317,  340. 

2  Ory  V.  Winter,  16  Martin,  R.  277;  Shcrriil  v.  Hopkins,  1  Cowen,R. 
103  ;  ante,  ^  317,  §  340. 

•^  See  Bianchard  v.  Russell,  13  Mass.  R.  12  ;  Ogdcn  v.  Saunders,  12 
Wheaton,  R.  300  ;  Potter  v.  Brown,  5  East,  R.  123,  130. 


CH.  VIII.]  FOREIGN   CONTRACTS.  577 

the  Supreme  Court  of  the  United  States  to  be  the  true 
doctrine  in  the  case  of  a  negotiable  bill  of  exchange,  in 
which  the  drawer's  responsibility  was  supposed  to  be 
governed  by  the  law  of  the  place  where  the  bill  was 
drawn,  notwithstanding  an  indorsement  in  another  coun- 
try ;  1  and  also  by  the  Court  of  King's  Bench  in  Eng- 
land, in  a  case  in  which  a  right  to  a  Bank  of  England 
note  was  supposed  to  be  governed  by  the  law  of  Eng- 
land, notwithstanding  a  transfer  of  the  same  had  been 
subsequently  made  in  France.^ 

§  347.  Pardessus  has  laid  down  a  doctrine  equally 
broad.  He  says,  that  it  is  by  the  law  of  the  place, 
where  a  bill  of  exchange  is  payable,  that  we  are  to  as- 
certain, when  it  falls  due,  the  days  of  grace  belonging 
to  it,  the  character  of  these  delays,  whether  for  the 
benefit  of  the  holder  or  of  the  debtor;  in  one  word, 
every  thing  which  relates  to  the  right  of  requiring 
payment  of  a  debt,  or  the  performance  of  any  other 
engagement,  when  the  parties  have  not  made  any  stip- 
ulation to  the  contrary.^  And  it  is  of  little  consequence, 
whether  the  person,  who  demands  payment,  is  the 
creditor,  who  made  the  contract,  or  an  assignee  of  his 
right ;  such  as  the  holder  of  a  bill  of  exchange  by  in- 
dorsement.     This  circumstance   makes  no   change   in 


1  Slacum  V.  Pomeroy,  6  Cranch,  R.  221. 

2  De  la  Chaumette  v.  The  Bank  of  England,  9  Barn.  &  Cresw.  208  ; 
S.  C.  2  Barn.  &  Adolph.  385  ;  post,  ^  353.  See  also  2  Bell,  Comm. 
§  1267,  p.  692,  693,  4lh  edit.  ;  Id.  p.  688  to  692,  5th  edit  —Quid  si  de 
literis  cambii  incidat  questio,  (says  Paul  Voet,)  quis  locus  spectandus?  Is 
locus,  ad  qiiem  sunt  destinatse,  et  ibidem  acceptataj.  P.  Voet,  De  Stat. 
§  9,  ch.  2,  ^  14,  p.  271,  edit.  1715  ;  Id.  p.  327,  edit.  1661  ;  ante,  ^  317. 

3  Pardessus,  Droit  Comm.  art.  1495,  1498,  1499,  1500;  ante,  ^  316; 
post,  ^  361. 

CONFL.  49 


578  CONFLICT    OF   LAWS.  [CH.    VIII. 


ref^ard  to  the  debtor.  The  indorsee  cannot  require 
payment  in  any  other  manner,  than  the  original  cred- 
itor could.^  And  he  applies  this  doctrine  to  the  case 
of  successive  indorsements  of  bills  of  exchange,  made 
in  different  countries,  stating,  that  the  rights  of  each 
holder  are  the  same,  as  those  of  the  original  payee 
against  the  acceptor.^  He  adds,  also,  that  the  effects 
of  an  acceptance  are  to  be  determined  by  the  law  of 
the  place,  where  it  has  been  made  f  that  every  in- 
dorsement subjects  the  indorser  to  the  law  of  the  place, 
where  it  has  been  made ;  and  that  it  governs  his 
responsibility  accordingly.^ 

§  348.  Notwithstanding  the  principle,  that  a  dis- 
charge of  the  Lex  loci  contractus  is  valid  every  where, 
and  vice  versa,  is  generally  admitted,  -as  a  part  of 
private  international  law ;  yet  it  cannot  be  denied,  that 
any  nation  may  by  its  own  peculiar  jurisprudence 
refuse  to  recognise  it ;  and  may  act  within  its  own 
tribunals  upon  an  opposite  doctrine.^  But,  then,  under 
such  circumstances  its  acts  and  decisions  will  be  deemed 
of  no  force  or  validity  beyond  its  own  territorial  limits. 
Thus,  if  a  state  should  by  its  own  laws  provide,  that  a 
discharge  of  an  insolvent  debtor  under  its  own  laws 
should  be  a  discharge  of  all  the  contracts,  even  of  those 
made  in  a  foreign  country,  its  own  courts  would  be 


1  Pardessus,  Droit,  Comm.  art.  1 195,  1198,  1499,  1500  ;  ante,  ^  316  ; 
post,  ^  3G1. 

2  Ibid. 

3  Pardessus,  Droit.  See  Rothschild  v.  Ciirrie,  I  Adolph.  &  Ellis, 
New  R.  43  ;  Shanklin  v.  Cooper,  8  Blackf.  41  ;  ante,  ^  314,  (^  31G ;  post, 
§  361  ;  Com.  art.  1499. 

4  Id.  art.  1499. 

5  Ante,  ^  334;  post,  §  349,  350,  351, 


CII.  VIII.]  FOREIGN    CONTRACTS.  579 

bound  by  such  provisions.^     But  tliey  would,  or  migbt 
be  held  mere  nullities  in  every  other  country.^ 

§  349,  And  even  in  relation  to  a  discharge  according 
to  the  laws  of  the  place,  where  the  contract  is  made, 
there  are  (as  we  have  seen)  some  necessary  limitations 
and  exceptions  engrafted  upon  the  general  doctrine, 
which  every  country  will  enforce,  whenever  those  laws 
are  manifestly  unjust,  or  are  injurious  to  the  fair  rights 
of  its  own  citizens.^  It  has  been  said  by  a  learned 
Judge  with  great  force  ;  "  As  the  laws  of  foreign 
countries  are  not  admitted  ex  ]3roprio  vigore,  but  merely 
ex  comitate,  the  judicial  power  will  exercise  a  discretion 
with  respect  to  the  laws,  which  they  may  be  called 
upon  to  sanction ;  for  if  they  should  be  manifestly 
unjust,  or  calculated  to  injure  their  own  citizens,  they 
ought  to  be  rejected.  Thus,  if  any  state  should  enact, 
that  its  citizens  should  be  discharged  from  all  debts 
due  to  creditors  living  without  the  state,  such  a  pro- 
vision would  be  so  contrary  to  the  common  principles 
of  justice,  that  the  most  liberal  spirit  of  comity  would 
not  require  its  adoption  in  any  other  state.  So,  if  a 
state,  under  the  pretence  of  establishing  a  general 
bankrupt  law,  should  authorize  such  proceedings,  as 
would  deprive  all  creditors  living  out  of  the  state  of  an 


1  See  Penniman  v.  Meigs,  9  Johns.  R.  325  ;  Babcock  v.  Weston, 
1  Gallis.  R.  168  ;  Murray  v.  De  Rottenham,  6  Johns.  Ch.  R.52  ;  Holmes 
V.  Remsen,  4  Johns.  Ch.  R.  471. 

2  See  Blanchard  v.  Russell,  13  Mass.  R.  6  ;  post,  ^  349  ;  Ellicott  v. 
Early,  3  0111,439;  Very  r.  McHenry,  29  Maine,  208;  Van  Raugh  v. 
Van  Ardaln,  3  Cain.  R.  154  ;  Smith  v.  Buchanan,  1  East,  R.  6 ;  Smith 
I'.  Smith,  2  Johns.  R.  235;  Green  v.  Sarmiento,  Peters,  Cir.  R.  74; 
McMenomy  v.  Murray,  3  Johns.  Ch.  R.  435  ;  Wolff  u.  Oxholm,  6  Maule 
&  Selw.  R.  92;  ante,  ^338. 

3  Ante,  ^  339;  post,  ^  350,  351. 


580  CONFLICT    OF  LAWS.  [CH.   VIIL 

opportunity  to  share  in  the  distribution  of  the  effects  of 
the  debtor,  such  a  law  would  have  no  effect  beyond 
the  territory  of  the  state,  in  which  it  was  passed."  ^ 

§  350.  The  same  reasoning  was  again  asserted  by 
the  same  learned  Judge  in  another  case,  calling  for  an 
exposition  of  the -limitations  of  the  doctrine.  ^' This 
rule  "  (said  he)  "  must  however,  from  its  very  nature, 
be  qualified  and  restrained  -,  for  it  cannot  be  admitted, 
as  a  principle  of  law  or  justice,  that,  when  a  valid 
personal  contract  is  made,  which  follows  the  person  of 
the  creditor,  and  may  be  enforced  in  any  foreign  juris- 
diction, that  a  mode  of  discharge,  manifestly  partial  or 
unjust,  and  tending  to  deprive  a  foreign  creditor  of  his 
debt,  while  he  is  excluded  from  a  participation  with 
the  domestic  creditors  in  the  effects  of  the  debtor, 
should  have  force  in  any  country,  to  the  prejudice  of 
their  own  citizens.  The  comity  of  nations  does  not 
require  it,  and  the  fair  principles  of  a  contract  would 
be  violated  by  it."  ^ 

§  351.  "  Thus  if  a  citizen  of  this  State,  being  in  a 
foreign  country,  should,  for  a  valuable  consideration, 
receive  a  promise  to  pay  money,  or  to  perform  any 
other  valuable  engagement,  from  a  subject  of  that 
country;  and  the  law  should  provide  for  a  discharge 
from  all  debts  upon  a  surrender  of  his  effects,  without 
any  notice,  which  could  by  possibility  reach  creditors 
out  of  the  country,  where  such  a  law  should  exist; 
we  apprehend,  that  the  contract  ought  to  be  enforced 
here,  notwithstanding  a  discharge  obtained  under  such 
law.     For  although  the  creditor  is  to  be  presumed  to 


1  Mr,  Chief  Justice  Parker,  in  Blanchard  v.  Russell,  13  Mass.  R.  6. 

2  Ibid. 


CH.  VIII.]  FOREEGN    CONTRACTS.  581 

know  the  laws  of  the  place,  where  he  obtains  his  con- 
tract, yet  that  presumption  is  founded  upon  another, 
Avhich  is,  that  those  laws  are  not  palpably  partial  and 
unjust,  and  calculated  to  protect  the  creditors  at  home 
at  the  expense  of  those  who  are  abroad.  Such  laws 
would  come  within  the  well  known  exception  to  the 
rules  of  comity,  viz.,  that  the  laws,  which  are  to  be  ad- 
mitted in  the  tribunals  of  a  country,  where  they  are 
not  made,  are  not  to  be  injurious  to  the  state,  or  the 
citizens  of  the  state,  where  they  are  so  received."  ^ 

§  351  a.  But  although  the  general  rule,  that  a  con- 
tract, as  to  its  dissolution  and  discharge,  is  to  be  go- 
verned by  the  law  of  the  place  where  it  is  made,  is 
thus,  with  few  exceptions  and  limitations,  admitted  to 
be  well  established ;  yet  we  are  not  to  understand,  that 
it  thence  follows,  as  a  necessary  consequence,  that  in  no 
cases  whatever,  can  a  contract  be  discharged  or  dissol- 
ved, except  in  the  mode,  and  by  the  process  and  formali- 
ties, prescribed  by  the  same  law ;  or  in  other  words, 
that  it  must  be  discharged  and  dissolved  eo  ligamine, 
quo  ligatur,  or  rather  by  reversing  the  operation,  which 
knit  it  under  the  local  law.^  On  the  contrary,  there  are, 
or  may  be,  circumstances,  under  which  an  opposite  rule 
may  be  maintainable  -,  and  the  law  of  another  country, 
prescribing  different  modes  of  proceeding,  or  different 
formalities,  or  different  acts,  wdiich  shall  establish  a 
dissolution  thereof,  may  also  well  prevail  to  annul  or 
discharge  the  contract.     A  change  of  domicil  of  the 


1  Mr.  Chief  Justice  Parker  in  Prentiss  v.  Savage,  13  Mass.  R.  23,  24  ; 
Very  V.  McHenry,  20  Maine,  208.  See  also  Fergusson  on  Marr.  and 
Div.  390,  397;  Wolff  t'.  Oxholm,  6  Maule  &  Selw.  92  ;  ante,  ^  244. 

2  See  Warrender  v.  Warrender,  9  Bligli,  R.  124,  125  ;  ante,  §  226  c, 
note. 

49* 


582  CONFLICT    OF   LAWS.  [CH.  VIII. 

parties  to  the  latter  country,  or  an  act  done  in  that 
country,  which  would  there  operate  to  dissolve  or  dis- 
charge the  contract,  may  well  produce  the  fullest  effect, 
although  the  same  act  might  not  be  recognised  by  the 
law  of  the  place  of  the  origin  of  the  contract.  Thus, 
for  example,  as  we  well  know,  the  obligation  of  a  bond, 
or  other  sealed  instrument,  after  a  breach  of  the  con- 
tract created  thereby,  cannot  in  England  be  discharged, 
or  released,  except  by  a  sealed  instrument,  or  a  release 
under  seal,  according  to  the  known  maxim  of  the  com- 
mon law  ;  Eodem  modo,  quo  quid  constituitur,  eodem  modo 
dissolvitiir.  And  yet  by  the  law  of  most,  if  not  of  all, 
of  the  continental  countries,  whose  jurisprudence  is 
founded  on  the  Roman  law,  a  simple  receipt  or  dis- 
charge, not  under  seal,  would,  if  executed  in  such 
countries,  be  held  to  discharge  the  bond  or  other  sealed 
instrument.  Let  us,  then,  suppose  a  bond,  executed  in 
England  for  the  payment  of  money,  and  when  it  became 
due,  there  should  be  a  default  in  payment,  and  after- 
wards the  creditor  should  receive  payment  of  the  debtor 
in  France,  or  otherwise  should  discharge  him  by  a  writ- 
ten unsealed  instrument  in  France ;  such  a  discharge 
would  in  France  be  held  valid,  and  conclusive,  if  good 
by  the  law  of  France,  notwithstanding  it  might  be  held 
invalid  in  an  English  court  of  common  law.  In  short, 
any  act  done,  after  such  an  obligation  was  created,  in  a 
foreign  country,  by  whose  laws  the  act  would  operate 
as  a  dissolution  thereof,  would  be  treated  in  that  coun- 
try at  least,  as  a  complete  extinguishment  thereof 

§  351  h.  It  is  not  easy,  therefore,  upon  principle,  to 
say,  why  such  an  extinguishment  of  a  contract,  accord- 
ing to  the  Lex  Loci,  ought  not  everywhere  else  to  have 
the  same  operation,  even  in  the  country  of  the  origin 
of  the  contract.     For,  if  the  contract  derives  its  whole 


CH.  VIII.]  FOREIGN    CONTRACTS.  583 

original  obligatory  force  from  the  law  of  the  place, 
where  it  is  made,  it  is  but  following  out  the  same  prin- 
ciple to  hold,  that  any  act  subsequently  done,  touching 
the  same  contract  by  the  parties,  should  have  the  same 
obligatory  force  and  operation  upon  it,  which  the  law 
of  the  place  where  it  is  done  attributes  to  it.  And  in 
this  respect  there  certainly  is,  or  at  least  may  be,  a 
clear  distinction  between  acts  done  by  the  parties  in  a 
foreign  country,  and  which  derive  their  operation  from 
their  voluntary  consent  and  intention,  and  acts  in  in- 
vitum,  deriving  their  whole  authority  and  effect  from 
the  operation  of  the  local  law,  independent  of  any  such 
consent.^ 

§  351  c.  Indeed,  the  reasonable  interpretation  of  the 
general  rule  would  seem  to  be,  that,  while  contracts 
made  in  one  country  are  properly  held  to  be  dissoluble 
and  extinguishable,  according  to  the  laws  of  that  coun- 
try, as  natural  incidents  to  the  original  concoction  of 
such  contracts,  they  are,  and  may  at  the  same  time 
also  be  equally  dissoluble  and  extinguishable  by  any 
other  acts  done  or  contracts  made  subsequently  in 
another  country  by  the  parties,  which  acts  or  contracts, 
according  to  the  law  of  the  latter  country,  are  sufficient 
to  work  such  a  dissolution  or  extinguishment.  It  is  to 
this  double  posture  of  a  case,  that  Lord  Brougham  re- 
ferred in  one  of  his  judgments.  "If  a  contract,"  said 
he,  "  for  sale  of  a  chattel  is  made,  or  an  obligation  of 
debt  is  incurred,  or  a  chattel  is  pledged  in  one  country, 
the  sale  may  be  annulled,  the  debt  released,  and  the 
pledge  redeemed  by  the  law  and  by  the  forms  of 
another  country,  in  which  the  parties  happen  to  reside. 


»  Post,  nil- 


584  CONFLICT    OF   LAWS.  [CH.  VIIL 

and  in  whose  courts  their  rights  and  obligations  come 
in  question,  unless  there  was  an  express  stipulation  in 
the  contract  itself  against  such  avoidance,  release,  or 
redemption.     But  at  any  rate,  this  is  certain,  that  if 
the  laws  of  one  country  and  its   courts  recognise  and 
give  effect  to  those  of  another  in  respect  of  the  consti- 
tution of  any  contract,  they  must  give  the  like  recogni- 
tion and  effect  to  those  same  foreign  laws,  when  they 
declare  the  same  kind  of  contract  dissolved.     Suppose 
a  party  forbidden  to  purchase   from  another  by  our 
equity,  as  administered  in  the  Courts  of  this  country, 
(and  we  have  some  restraints  upon  certain  parties,  which 
come  very  near  prohibition;)  and  suppose  a  sale   of 
chattels  by  one  to  another  party,  standing  in  this  rela- 
tion towards  each  other,  should  be  effected  in  Scotland, 
and  that  our   Courts  here   should,  (whether  *  right  or 
wrong.)  recognise  such  a  rule,  because  the  Scotch  law 
would  affirm  it ;  surely  it  would  follow  that  our  Courts 
must  equally  recognize  a  recission  of  the  contract  of 
sale   in   Scotland  by  any  act,  which  the  Scotch   law 
regards  as  valid  to  rescind  it,  although  our  own  law 
may  not  regard  it  as  sufficient.     Suppose  a  question  to 
arise  in  the  Courts  of  England  respecting  the  execu- 
tion of  a  contract,  thus  made  in  this  country,  and  that 
the  objection  of  its  invalidity  were  waived  for  some 
reason ;    if  the  party  resisting  its  execution  were  to 
produce  either  a  sentence  of  a  Scotch  Court,  declaring 
it  rescinded  by  a  Scotch  matter  done  in  pais,  or  were 
merely  to  produce  evidence  of  the  thing  so  done,  and 
proof  of  its  amounting  by  the  Scotch  law  to  a  recission 
of  the  contract ;  I  apprehend,  that  the  party  relying  on 
the  contract  could  never  be  heard  to  say ;  '  The  con- 
tract is  English,  and  the  Scotch  proceeding  is  impotent 
to   dissolve   it.'     The   reply   would  be,   '  Our  English 


CH.  VIII.]  FOREIGN    CONTRACTS.  585 

Courts  have  (whether  right  or  wrong)  recognized  the 
validity  of  a  Scotch  proceeding  to  complete  the  obliga- 
tion, and  can  no  longer  deny  the  validity  of  a  similar, 
but  reverse  proceeding  to  dissolve  it —  Umanquodqiie 
dissolvitiir  codcm  modo,  quo  colligatur^.  Suppose,  for 
another  example,  (which  is  the  case,)  that  the  law  of 
this  country  precluded  an  infant  or  a  married  woman 
from  borrowing  money  in  any  way,  or  from  binding 
themselves  by  deed  ;  and  that  in  another  country  those 
obligations  could  be  validly  incurred ;  it  is  probable, 
that  our  law  and  our  Courts  would  recognize  the  valid- 
ity of  such  foreign  obligations.  But,  suppose  a  feme 
covert  had  executed  a  power,  and  conveyed  an  interest 
under  it  to  another /f;«c  covert  in  England  ;  could  it  be 
endured,  that  where  the  donee  of  the  power  produced  a 
release  under  seal  from  the  feme  covert  in  the  same 
foreign  country,  a  distinction  should  be  taken,  and  the 
Court  here  should  hold  that  party  incapable  of  releasing 
the  obligation  ?  Would  it  not  be  said,  that  our  Courts 
having  decided  the  contract  of  a  feme  covert  to  be  bind- 
ing when  executed  abroad,  must,  by  parity  of  reason, 
hold  the  discharge  or  release  of  the  feme  covert  to  be 
valid,  if  it  be  valid  in  the  same  foreign  country  ? "  ^ 

§  351  d.  Nor  does  there  seem  to  be  in  this  respect 
any  acknowledged  distinction  between  contracts,  which 
are  purely  personal,  and  contracts  which  impose  or  may 
impose  any  charge  on  real  estate ;  for  although  in  re- 
spect to  immovable  property  the  law  of  the  mtus  should 
be  admitted  (as  certainly  is  the  case  at  the  common 
law)  to  regulate  all  the  rights  to  immovable  property ; 
yet  it  does  not  thence  follow,  that  an  act,  which  would 

1  Warrender  v.  Warrender,  9  Bligh,  R.  125  to  127  ;  ante,  \  226  c, 
note. 


586  CONFLICT   OF  LAWS.  [CH.  Vm. 

operate  as  a  dissolution  or  extinguislament  of  the  con- 
tract, creating  sucli  charge,  according  to  the  law  of  a 
foreign  country,  where  it  is  subsequently  done,  may 
not  incidentally  and  indirectly  work  such  a  dissolution 
or  extinguishment  thereof,  although  it  does  not  conform 
to  the  Lex  rei  sitw.  Lord  Brougham  on  the  same  occa- 
sion, referring  to  this  topic  said  ;  "  All  personal  obliga- 
tions may  in  their  consequences  affect  real  rights  in 
England.  Nor  does  a  Scotch  divorce,  by  depriving  a 
widow  of  dower  or  arrears  of  pin  money,  charged  on 
English  property,  more  immediately  affect  real  estate 
here  than  a  bond  or  a  judgment  released  in  Scotland 
according  to  Scotch  forms,  discharges  real  estate  of  a 
lien,  or  than  a  bond  executed,  or  indeed  a  simple  con- 
tract debt  incurred  in  Scotland,  eventually  and  conse- 
quently charges  English  real  estate."  ^ 

§  352.  Before  we  quit  this  head  of  contracts,  it  may 
be  well  to  bring  together  some  principles  applicable  to 
negotiable  instruments,  which  have  not  been  brought 
as  distinctly  under  review  in  the  preceding  discussions, 
as  they  deserve  to  be,  and  which  afford  important  illus- 
trations of  the  operation  of  foreign  law  upon  contracts 
and  their  incidents.  The  subject  of  the  assignments  of 
debts  and  other  cJioses  in  action,  not  negotiable  by  the 
general  law  merchant,  or  the  laws  of  particular  coun- 
tries, will  more  properly  find  a  place  in  our  subsequent 
inquiries.^ 

§  353.  Questions  have  arisen,  whether  negotiable 
notes  and  bills,  made  in  one  country,  are  transferable  in 
other  countries,  so  as  to  found  a  right  of  action  in  the 


'  Warrender  v.  Warrender,  9  Bligh,  R.  127  ;  ante,  §  226  c,  note. 
~  Post,  ^  355,  ^  395  to  ^  400,  ^  566 ;  3  Surge,  Comm.  on  Col.  and  For. 
Law,  Pt.  2,  ch.  20,  p.  777,  778. 


CH.  viil]  foreign  contracts.  587 

holder  against  the  other  parties.  Thus,  a  question  oc- 
curred in  England,  in  a  case  Avhere  a  negotiable  note, 
made  in  Scotland,  and  there  negotiable,  was  indorsed, 
and  a  suit  brought  in  England  by  the  indorsee  against 
the  maker,  whether  the  action  was  maintainable.  It  was 
contended,  that  the  note,  being  a  foreign  note,  was  not 
within  the  statute  of  Anne  (3  and  4  Ann.  ch.  9.),  which 
made  promissory  notes  payable  to  order  assignable  and 
negotiable ;  for  that  statute  applied  only  to  inland 
promissory  notes.  But  the  Court  overruled  the  objec- 
tion, and  held  the  note  suable  in  England  by  the  indor- 
see, as  the  statute  embraced  foreign,  as  well  as  domestic 
notes.^  In  another  case  a  promissory  note,  made  in 
England,  and  payable  to  the  bearer,  w^as  transferred  in 
France  ;  and  the  question  was  made,  whether  the  French 
holder  could  maintain  an  action  thereon  in  England ; 
such  notes  not  being  by  the  law  of  France  negotiable  ; 
and  it  was  held,  that  he  might.^  But  in  each  of  these 
cases  the  decision  was  expressly  put  upon  the  provisions 
of  the  statute  of  Anne  respecting  promissory  notes,  lea- 
ving wholly  untouched  the  general  doctrine  of  interna- 
tional law. 

§  353  «.  In  a  more  recent  case,  which  has  been 
already  cited,^  a  negotiable  note  was  made  in  France 
and  indorsed   in   France,  and   afterwards   a   suit  was 


1  Milne  v.  Graham,  1  Barn.  &  Cresw.  192. — It  does  not  distinctly  ap- 
pear upon  the  Report,  whether  the  indorsement  was  made  in  Scotland  or 
in  England.  But  it  was  probably  in  England.  But  see  Carr  v.  Shaw, 
Bayley  on  Bills,  p.  16,  note,  5th  edit.  ;  Id.  p.  ?2,  American  Edition,  by 
Phillips  v^  Sewall,  1836. 

2  De  la  Chaumette  v.  The  Bank  of  England,  2  Barn.  &  Adolph.  R. 
385  ;  S.  C.  9  Barn.  &  Cresw.  208 ;  and  see  Chitty  on  Bills,  p.  551,  552, 
8th  edit.  ;  ante,  §  346. 

3  Ante,  ^  316  a. 


588  CONFLICT    OF    LAWS.  [CH.  VIIL 

brouglit  thereon  by  the  indorsee  against  the  maker  in 
England.  One  question  in  the  case  was,  whether  a 
blank  indorsement  in  France  was  by  the  law  of  Trance 
sufficient  to  transfer  the  property  in  the  note,  without 
any  other  formalities.  It  was  held,  that  it  was  not  suffi- 
cient. But  it  seems  to  have  been  taken  for  granted, 
that  if  the  note  was  well  negotiated  by  the  indorsement, 
a  suit  might  be  maintained  thereon  in  England  by  the 
indorsee  in  his  own  name.  On  that  occasion  the  Court 
said  ;  "  The  rule,  which  applies  to  the  case  of  contracts 
made  in  one  country,  and  put  in  suit  in  the  courts  of  law 
of  another  country,  appears  to  be  this  ;  that  the  interpre- 
tation of  the  contract  must  be  governed  by  the  law  of 
the  country  where  the  contract  was  made  {Lex  loci 
contradus) ;  the  mode  of  suing,  and  the  time  within  which 
the  action  must  be  brought,  must  be  governed  by  the 
law  of  the  country  where  the  action  is  brought.  [In 
ordinandis  judiciis,  loci  consiietiido,  uhi  agitiir.)  This  dis- 
tinction has  been  clearly  laid  down  and  adopted  in  the 
late  case  of  De  la  Vega  v.  Vianna.  See  also  the  case 
of  the  British  Linen  Company  against  Drummond  where 
the  different  authorities  are  brought  together.  The 
question  therefore  is,  whether  the  law  of  France,  by 
which  the  indorsement  in  blank  does  not  operate  as  a 
transfer  of  the  note,  is  a  rule  which  governs  and  regu- 
lates the  interpretation  of  the  contract,  or  only  relates 
to  the  mode  of  instituting  and  conducting  the  suit ; 
for,  in  the  former  case,  it  must  be  adopted  by  our  courts, 
in  the  latter  it  may  be  altogether  disregarded,  and  the 
suit  commenced  in  the  name  of  the  present  plaintiff. 
And  we  think  the  French  law  on  the  point  above  men- 
tioned is  the  law  by  which  the  contract  is  governed, 
and  not  the  law  which  regulates  the  mode  of  suing. 
If  the  indorsement  has  not  operated  as  a  transfer,  that 


CH.  VIII.]  FOREIGN    CONTRACTS.    *  589 

goes  directly  to  the  point,  that  there  is  no  contract 
upon  which  the  plaintiff  can  sue.  Indeed,  the  differ- 
ence in  the  consequences  that  would  follow,  if  the 
plaintiff  sues  in  his  own  name,  or  is  compelled  to  use 
the  name  of  the  former  indorser,  as  the  plaintiff  by 
procuration,  would  be  very  great  in  many  respects,  par- 
ticularly in  its  bearing  on  the  law  of  set-off ;  and  with 
reference  to  those  consequences,  we  think  the  law  of 
France  falls  in  with  the  distinction  above  laid  down, 
that  it  is  a  law  which  governs  the  contract  itself,  not 
merely  the  mode  of  suing.  We  therefore  think,  that 
our  courts  of  law  must  take  notice,  that  the  plaintiff 
could  have  no  right  to  sue  in  his  own  name  upon  the 
contract  in  the  courts  of  the  country  where  such  con- 
tract was  made  j  and  that  such  being  the  case  there, 
we  must  hold  in  our  courts  that  he  can  have  no  right 
of  suing  here."  ^ 

§  354.  Several  other  cases  may  be  put  upon  this  sub- 
ject. In  the  first  place,  suppose  a  note  negotiable  by 
the  law  of  the  place  where  it  is  made,  is  there  trans- 
ferred by  indorsement  -,  can  the  indorsee  maintain  an 
action  in  his  own  name  against  the  maker  in  a  foreign, 
country,  (where  both  are  found,)  in  which  there  is  no 
positive  law  on  the  subject  of  negotiable  notes  applica- 
ble to  the  case  ?  If  he  can,  it  must  be  upon  the  ground 
that  the  foreign  tribunal  would  recognize  the  validity 
of  the  transfer  by  the  indorsement  according  to  the  law 
of  the  place  where  it  is  made.  According  to  the  doc- 
trine maintained  in  England,  as  choses  in  action  are  by 
the  common  law  (independent  of  statute)  incapable  of 


1  Triinbey  v.  Vijjnier,  1  Bing.  N.  Cas.  151,  159,    160  ;  post,   ^  565, 
566. 

CONFL.  50 


590  CONFLICT    OF   LAWS.  [CH.  VIIL 

being  transferred  over,  it  might  be  argued  that  he  could 
not  maintain  an  action,  notwithstanding  the  instrument 
was  well  negotiated,  and  transferred  by  the  law  of  the 
place  of  the  contract.^  So  far  as  this  principle  of  the 
non-assignability  of  choses  in  action  would  affect  trans- 
fers in  England,  it  would  seem  reasonable  to  follow  it. 
But  the  difficulty  is  in  applying  it  to  transfers  made  in 
a  foreign  country,  by  whose  laws  the  instrument  is  ne- 
gotiable, and  capable  of  being  transferred,  so  as  to  vest 
the  property  and  right  in  the  assignee.  In  such  a  case 
it  would  seem  that  the  more  correct  rule  would  be,  that 
the  Lex  loci  contractus  ought  to  govern ;  because  the 
holder  under  the  indorsement  has  an  immediate  and  ab- 
solute right  in  the  contract  vested  in  him,  as  much  as 
he  would  have  in  goods  transferred  to  him.  Under 
such  circumstances  to  deny  the  legal  effect  of  the  in- 
dorsement is  to  construe  the  obligation,  force,  and  effect 
of  a  contract,  made  in  one  place,  by  the  law  of  another 
place.  The  indorsement  in  the  place  where  it  is  made, 
creates  a  direct  contract  between  the  maker  and  the 
first  indorsee ;  and  if  so,  that  contract  ought  to  be  en- 
forced between  them  everywhere.  It  is  not  a  question 
as  to  the  form  of  the  remedy,  but  as  to  the  right.^ 

§  355.  The  same  view  of  the  doctrine  seems  to  have 
been  taken  in  another  case  in  England,  much  stronger 
in  its  circumstances  than  the  case  of  a  foreign  nego- 
tiable note,  which  may  be  thought  to  stand  in  some 


1  See  2  Black.  Comm.  442  ;  Jeffrey  v.  McTaggarl,  6  Maule  &  Selw. 
126  ;  Innes  v.  Dunlop,  8  T.  R.  595.  See  also  Jeffrey  v.  McTaggart, 
6  Maule  &  Selw.  R.  12G  ;  post,  ^  565,  506. 

2  SeeTrimbey  v.  Vignier,  1  Bing.  New  Cases,  159,  160,  101  ;  ante, 
^  353  a,  where  the  same  reasoning  seems  to  have  applied  ;  post,  ^  565, 
566. 


CH.  VIII.]  FOREIGN    CONTRACTS.  591 

measure  upon  the  custom  of  merchants.  A  suit  was 
brought  by  the  assignee  of  an  Irish  judgment  against 
the  judgment  debtor  in  England,  the  judgment  being 
made  expressly  assignable  by  Irish  statutes ;  and  the 
objection  was  taken  that  no  action  could  be  maintained 
by  the  assignee,  because  it  would  contravene  the  gene- 
ral principle  of  the  English  law,  that  choses  in  action 
were  not  assignable.  But  the  Court  intimated  a  strong 
opinion  against  this  ground  of  argument ;  and  the 
cause  finally  was  disposed  of  upon  another  point ;  but 
in  such  a  manner  as  left  the  opinion  in  full  force.^  It 
is  matter  of  surprise,  that  in  some  of  the  more  recent 
discussions  in  England  upon  the  negotiations  of  notes 
in  foreign  countries,  this  doctrine  has  not  been  distinctly 
insisted  on.  For,  even  in  England,  negotiable  notes 
are  not  treated  as  mere  choses  in  action ;  but  they  are 
deemed  to  have  a  closer  resemblance  to  personal  chat- 
tels on  account  of  their  transferability  ;  so  that  the  le- 
gal property  in  them  passes  upon  the  transfer,  as  it 
does  in  the  case  of  chattels.^  If  so,  no  one  could  doubt 
that  a  title  of  transfer  of  personal  property  in  a  foreign 
country,  good  by  the  laws  of  the  country  where  it  is 
made,  ought  to  be  held  equally  good  everywhere.^ 

§  356.  In  the  next  place,  let  us  suppose  the  case  of 
a  negotiable  note,  made  in  a  country  by  whose  laws  it 
is  negotiable,  is  actually  indorsed  in  another,  by  whose 
laws  a  transfer  of  notes  by  indorsement  is  not  allowed. 
Could  an  action  be  maintained  by  the  indorsee  against 
the  maker,  in  the  courts  of  either  country?  If  it 
could  be  maintained  in  the  country  whose  laws  do  not 


1  O'Callaghan  v.  Thomond,  3  Taunt.  R.  82  ;  post,  ^  565,  566. 

2  McNeil  V.  HoUoway,  1  Barn.  &  Aid.  R.  218. 
8  Ante,  §  353  a. 


592  CONFLICT   OF   LAWS.  [CH.  VIII. 

allow  such  a  transfer,  it  must  be  upon  the  ground  that 
the  original  negotiability  by  the  Lex  loci  contractus^  is 
permitted  to  avail,  in  contradiction  to  the  Lex  fori.  On 
the  other  hand,  if  the  suit  should  be  brought  in  the 
country  where  the  note  was  originally  made,  the  same 
objection  might  arise,  that  the  transfer  was  not  allowed 
by  the  law  of  the  place  where  the  indorsement  took 
place.  But,  at  the  same  time,  it  may  be  truly  said, 
that  the  transfer  is  entirely  in  conformity  to  the  intent 
of  the  parties,  and  to  the  law  of  the  original  contract.^ 
§  357.  In  the  next  place,  let  us  suppose  the  case 
of  a  note,  not  negotiable  by  the  law  of  the  place,  where 
it  is  made,  but  negotiable  by  the  law  of  the  place, 
where  it  is  indorsed ;  could  an  action  be  maintained, 
in  either  country,  by  the  indorsee  against  the  maker  ? 
It  would  seem,  that  in  the  country,  where  the  note  was 
made,  it  could  not ;  because  it  would  be  inconsistent 
with  its  own  laws.  But  the  same  difficulty  would  not 
arise  in  the  country,  where  the  indorsement  was  made ; 
and,  therefore,  if  the  maker  used  terms  of  negotiability 
in  his  contract,  capable  of  binding  him  to  the  indorsee, 
there  would  not  seem  to  be  any  solid  objection  to  giving 
the  contract  its  full  effect  there.  And  so  it  has  been 
accordingly  adjudged  in  the  case  of  a  note  made  in 
Connecticut,  payable  to  A.,  or  order,  but  by  the  laws  of 
that  State,  not  negotiable  there,  and  indorsed  in  New 
York,  where  it  was  negotiable.    In  a  suit,  in  New  York, 


1  See  Chilly  on  Bills,  ch.  6,  p.  218,  219,  8th  London  edit.  See  Kames 
on  Equity,  B.  3,  ch.  8,  ^  4  ;  ante,  ^  353,  354.  — In  the  cases  of  Milne  v. 
Graham,  1  Barn.  &  Cressvv.  192,  De  la  Chaumette  v.  Bank  of  England, 
2  Barn.  &  Adolp.  385,  and  Trimbey  v.  Vignier,  1  Bing.  N.  Cas.  151, 
the  promissory  notes  were  negotiable  in  both  countries,  as  well  where  the 
note  was  made,  as  where  it  was  transferred. 


CH.  Vlll.]  FOREIGN    CONTRACTS.  593 

by  the  indorsee  against  the  maker,  the  exception  was 
taken,  and  overruled.  The  Court,  on  tliat  occasion, 
said,  that  personal  contracts,  just  in  themselves,  and 
lawful  in  the  place'  where  they  are  made,  are  to  be 
fully  enforced,  according  to  the  law  of  the  place,  and 
the  intent  of  the  parties,  is  a  principle,  which  ought  to 
be  universally  received  and  supported.  But  this  ad- 
mission of  the  Lex  loci  contractus  can  have  reference 
only  to  the  nature  and  construction  of  the  contract,  and 
its  legal  effect,  and  not  to  the  mode  of  enforcing  it. 
And  the  Court  ultimately  put  the  case  expressly  upon 
the  ground,  that  the  note  was  payable  to  the  payee,  or 
order ;  and,  therefore,  the  remedy  might  well  be  pur- 
sued according  to  the  law  of  New- York  against  a  party, 
who  had  contracted  to  pay  to  the  indorsee.^  But,  if 
the  words,  "  or  order,"  had  been  omitted  in  the  note, 
so  that  it  had  not  appeared,  that  the  contract  between 
the  parties  originally  contemplated  negotiability,  as 
annexed  to  it,  a  different  question  might  have  arisen, 
which  would  more  properly  come  under  discussion  in 
another  place ;  since  it  seems  to  concern  the  interpret- 
ation and  obligation  of  contracts,  although  it  has  some- 
times been  treated  as  belonging  to  remedies.- 

§  358.  Another  case  may  be  put,  which  has  actually 
passed  into  judgment.  A  negotiable  note  was  given 
by  a  debtor,  resident  in  Maine,  to  his  creditor,  resident 
in  Massachusetts.  After  the  death  of  the  creditor,  his 
executrix,  appointed  in  Massachusetts,  indorsed  the 
same  note  in  that  State  to  an  indorsee,  who  brought  a 


1  Lodge  V.  Phelps,  1  Johns.  Cases,  139  ;  S.  C.  2  Caines,  Cas.  in  Error, 
321.     See  Kames  on  Equity,  B.  3,  ch.  8,  ^  4. 

2  See  Chitty  on  Bills,  ch.  6,  p.  218,  219,   8th  Lond.   edit.  ;    3  Kent, 
Comm.  Lect.  44,  p.  77,  3d  edit.  ;  ante,  ^  253  a. 

50* 


594  CONFLICT    OF    LAWS.  [CH.  VIII. 

suit,  as  indorsee,  against  the  maker  in  tlie  State  Court 
of  Maine.  The  question  was,  whether  the  note  was, 
under  the  circumstances,  suable  by  the  indorsee ;  and 
the  Court  held,  that  it  was  not;  for'the  Court  said,  that 
the  executrix  could  not  herself  have  sued  upon  the 
note,  without  taking  out  letters  of  administration  in 
Maine ;  and,  therefore,  she  could  not,  by  her  indorse- 
ment, transfer  the  right  to  her  indorsee.^ 

§  359.  It  does  not  appear,  by  the  report,^  whether 
the  note  was  made  in  Massachusetts  or  in  Maine.  It 
is  not,  perhaps,  in  the  particular  case  material,  as,  ac- 
cording to  the  law  of  both  States,  the  note  was  nego- 
tiable by  indorsement,  whether  made  in  the  one  or  in 
the  other  State.  If  it  had  been  different,  it  might  have 
given  rise  to  a  different  inquiry.  But  in  either  State, 
the  creditor  might  certainly,  in  his  lifetime,  by  his  in- 
dorsement, have  transferred  the  property  in  the  note  to 
the  indorsee ;  and  as  clearly  his  executrix  could  do  the 
same ;  for  it  is  entirely  well  settled,  that  an  executor 
or  administrator  can  so  transfer  any  negotiable  security 
by  his  indorsement  thereof.^  If,  then,  by  the  transfer 
in  Massachusetts,  the  property  passed  to  the  indorsee, 
it  is  difficult  to  perceive,  why  that  transfer  was  not  as 
effectual  in  Maine  as  in  Massachusetts ;  and,  by  the 
law  of  both  States,  an  indorsee  may  sue  on  negotiable 
instruments  in  his  own  name.     [And  this  doctrine  was 


1  Stearns  v.  Burnham,  5  Grcenl.  R.  261  ;  S.  P.  Thomson  i'.  Wilson, 
2  N.  Hamp.  R.  291.  But  see  Iluthwaite  v.  Phaire,  1  Mann.  &  Grang. 
R.  159,  164  ;  and  Rand  v.  Hubbard,  4  Mete.  R.  252,  258,  259  ;  post, 
^  516,  517.  See  Dixon  v.  Ramsay,  3  Cranch,  319;  Pond  v.  Makepeace, 
2  Mete.  114  ;  Harper  v.  Butler,  2  Peters,  239. 

2  [In  the  second  edition  of  Greenleafs  Reports,  by  Bennett,  1852,  it 
appears  that  this  note  was  made  and  indorsed  in  Massachusetts.] 

3  See  Rawlinson  v.  Stone,  3  Wilson,  R.  1  ;  S.  C.  2  Str.  R.  1260. 


CH.  VIII.]  FOREIGN    CONTRACTS.  595 

acted  upon  by  the  same  Court,  in  a  case  later  than  that 
just  alluded  to.  An  administrator  appointed  in  New 
Hampshire  and  residing  there,  held  in  his  official  capa- 
city, a  negotiable  note  against  a  citizen  of  Maine,  pay- 
able to  the  intestate,  also  a  resident  of  New  Hampshire. 
The  note  had  been  indorsed  in  blank  by  the  payee 
during  his  lifetime,  and  while  still  a  citizen  of  the 
latter  State.  The  administrator  was  allowed  to  sue  in 
the  Courts  of  Maine,  as  an  indorsee,  subject,  however, 
to  any  defence  open  between  the  original  parties.^]  In 
truth,  such  instruments  are  treated,  not  as  mere  choses 
in  action,  but  rather  as  chattels  personal.^  Choses  in 
action  are  not  assignable  by  law ;  and  actions  must  be 
brought  thereon  in  the  name  of  the  original  parties. 
But  negotiable  notes  are  transferable  by  indorsement ; 
and  when  transferred,  the  indorsee  may  sue  in  his  own 
name.  Upon  the  reasoning  in  the  above  case,  the  note 
would  cease  to  be  negotiable  after  the  death  of  the 
payee  ;  which  is  certainly  not  an  admissible  doctrme.^ 
The  decision,  in  a  recent  case,  in  the  Supreme  Court  of 
the  United  States,  is  founded  upon  the  doctrine,  that 
an  assignment  by  an  executor  of  a  chose  in  action  in 
the  State  where  he  is  appointed,  and  which  is  good  by 
its  laws,  will  enable  the  assignee  to  sue  in  his  own 
name  in  any  other  State,  by  whose  laws  the  instrument 


i  Barrett  v.  Barrett,  8  Greenl.  R.  (Bennett's  Ed.)  353. 

2  McNeilage  v.  Ilolloway,  1  Barn.  &  Aid.  218.  But  see  Richards  v. 
Richards,  2  Barn.  &  Adolph.  447,  452,  453  ;  ante,  §  355. 

3  Ravvlinson  v.  Stone,  3  Wilson,  R.  1  ;  S.  C.  2  Str.  R.  12G0  ;  Bayley 
on  Bills,  ch.  5,  p.  78,  5th  edit.  —  The  effect  of  assignments  of  debts  and 
other  personal  property  will  come  more  fully  under  review  in  the  succeed- 
ing chapter,  when  we  enter  upon  the  subject  of  the  law,  which  regulates 
the  transfer  of  personal  property.     Post,  §  395  to  ^  400. 


596  CONFLICT    OF    LAWS.  [CH.  VIIL 

would  be  assignable,  so  as  to  pass  the  note  to  the  as- 
signee, and  enable  him  to  sue  thereon.^ 

§  360.  As  to  bills  of  exchange,  it  is  generally  re- 
quired, in  order  to  fix  the  responsibility  of  other  parties, 
that,  upon  their  dishonor,  they  should  be  duly  protested 
by  the  holder,  and  due  notice  thereof  given  to  such 
parties.  And  the  first  question  which  naturally  arises, 
is,  whether  the  protest  and  notice  should  be  in  the 
manner,  and  according  to  the  forms  of  the  place  in 
which  the  bill  is  drawn,  or  according  to  the  forms  of  the 
place  in  which  it  is  payable.  By  the  common  law,  the 
protest  is  to  be  made,  at  the  time,  in  the  manner,  and 
by  the  persons  prescribed  in  the  place  where  the  bill 
is  payable.^  But,  as  to  the  necessity  of  making  a 
demand  and  protest,  and  the  circumstances  under 
which  notice  may  be  required  or  dispensed  with,  these 
are  incidents  of  the  original  contract,  which  are  go- 
verned by  the  law  of  the  place  where  the  bill  is  drawn.^ 
They  constitute  implied  conditions,  upon  which  the 
liability  of  the  drawer  is  to  attach,  according  to  the 
Lex  loci  contractus ;  and,  if  the  bill  is  negotiated,  the 


1  S.  p.  3  Kent,  Comm.  §  44,  p.  88,  4lh  edit. ;  Rand  v.  Hubbard, 
4  Mete.  R.  252,  258,  259  ;  Harper  v.  Butler,  2  Peters,  Sup.  Court,  R. 
239  ;  Trecothick  v.  Austin,  4  Mason,  16.  —  The  case  of  Trimbey  v.  Vig- 
nier,  1  Bing.  N.  Cases,  151,  (Ante,  §  353  a,)  seems  to  inculcate  the  doc- 
trine as  general,  that  a  transfer  of  property,  good  by  the  Lex  loci  of  the 
transfer,  will,  at  least  in  cases  of  negotiable  instruments,  be  held  good 
everywhere,  so  as  to  enable  the  indorsee  to  sue  in  his  own  name. 

2  Chitty  on  Bills,  p.  193,  490,  506,  507,  508,  8th  Lond.  edit.  1833  ; 
Post,  ^631.  See  Rothschild  ?-.  Currie,  1  Adolph.  &  Ell.  43 ;  Shanklin 
V.  Cooper,  8  Blackford,  41  ;  Pothier,  De  Change,  n.  155  ;  S.  P.  Pardes- 
sus  Droit,  Comm.  Tom.  5,  art.  1497,  1489,  n.  155,  states  the  same  point. 

3  Ibid.  See  Aymaru.  Sheldon,  12  Wend.  R.  439;  Id.  p.  490,  506, 
507,  508,  8th  Lond.  edit.  1833  ;  1  BouUenois,  Observ.  23,  p.  531,  532. 
Pardessus,  Tom.  5,  art.  1489,  1498.  Savary,  Le  Parfait,  Negotiant, 
Tom.  1,  Part  3,  Lib.  1,  oh.  14,  p.  851. 


CH.  VIII.]  FOREIGN    CONTRACTS.  597 

like  responsibility  attaches  upon  each  successive  in- 
dorser,  according  to  the  law  of  the  place  of  his  indorse- 
ment ;  for  each  indorser  is  treated  as  a  new  drawer.^ 
The  same  doctrine,  according  to  Pardessus,  prevails  in 
France.^ 

§  361.  Upon  negotiable  instruments,  it  is  the  custom 
of  most  commercial  nations  to  allow  some  time  for  pay- 
ment beyond  the  period  fixed  by  the  terms  of  the  in- 
strument. This  period  is  different  in  different  nations ; 
in  some,  it  is  limited  to  three  days ;  in  others,  it  ex- 
tends as  far  as  eleven  days.^  The  period  of  indulgence 
is  commonly  called  the  dai/s  of  grace  ;  as  to  which,  the 
rule  is,  that  the  usage  of  the  place  on  which  a  bill  is 
drawn,  and  where  payment  of  a  bill  or  note  is  to  be 


1  See  Rothschild  v.  Currie  ;  1  Adolph.  &  Ell.  43,  PothierDe  Change, 
n.  155  ;  Bayley  on  Bills,  ch.  A.  p.  78  to  p.  86,  5th  edit.  1836,  by  Phillips 
&  Sewall  ;  Chitty  on  Bills,  ch.  6,  p.  266,  267,  370,  8th  Lend.  edit. ;'  Bal- 
lingalls  V.  Gloster,  3  East,  R.  481  ;  ante,  ^  314  to  ^  317. 

2  Pardessus,  Droit  Comra.  art.  1485,  1495,  1496  to  1499  ;  Henry  on 
Foreign  Law,  53,  Appx.  p.  239  to  248.  Ante,  ^  314  to  ^  347.  Boul- 
lenois  admits,  that  the  protest  ought  to  be  according  to  the  law  of  the 
place  where  the  bill  is  payable.  But,  in  case  of  a  foreign  bill,  indorsed  by 
several  indorsements  in  different  countries,  he  contends  that  the  time, 
within  which  notice  or  recourse  is  to  be  had  upon  the  dishonor,  is  to  be 
governed  by  a  different  rule.  Thus,  he  supposes,  a  bill  drawn  in  England 
on  Paris  in  favor  of  a  French  payee,  who  indorses  it  to  a  Spaniard  (in 
Spain,)  and  he  to  a  Portuguese  (in  Portugal,)  and  he  to  the  holder  ;  and 
then  says,  that  the  holder  is  entitled  to  have  recourse  against  the  Portu- 
guese, within  the  time  prescribed  by  the  law  of  France,  because  the  holder 
is  there  to  receive  payment ;  the  Portuguese  is  to  give  notice  to  the 
Spaniard  within  the  time  prescribed  by  the  law  of  Portugal,  because  that 
is  the  only  law  with  which  he  is  presumed  to  be  acquainted,  &c.  ;  and  so 
in  regard  to  every  other  indorser,  he  is  to  have  recourse  within  the  period 
prescribed  by  the  law  of  the  place  where  the  indorsement  was  made,  and 
not  of  the  domicil  of  the  party  indorsing.  1  Boullenois,  Observ.  20,  p.  370, 
371,  372;  Id.  Observ.  23,  p.  531,  532. 

3  Bayley  on  Bills,  5th  Amer.  Edit,  by  Phillips  &  Sewall,  p.  234,  235  ; 
Chitty  on  Bills,  p.  407,  8ih  Lond.  edit.  ;  Id.  p.  193. 


598  CONFLICT    OF    LAWS.  [CH.  VIIL 

made,  governs  as  to  tlie  number  of  the  days   of  grace 
to  be  allowed  thereon.i 

§  362.  This  head,  respecting  contracts  in  general, 
may  be  concluded  by  remarking  that  contracts  respect- 
ing personal  property  and  debts,  are  now  universally 
treated  as  having  no  situs  or  locality ;  and  they  follow 
the  person  of  the  owner  in  point  of  right ;  [3IoUlia  in- 
hcerent  ossibus  domini  ;y  although  the  remedy  on  them 
must  be  according  to  the  law  of  the  place  where  they 
are  sought  to  be  enforced.  The  common  language  is  : 
Mohilia  non  Jiahent  seqiielam  ;  MoUlia  ossibus  inhcerent  ; 
Actor  seqidtiir  forum  Rei ;  Dehita  seqmintur  personam 
dehitoris.^  That  is  to  say,  they  are  deemed  to  be  in  the 
place,  and  are  disposed  of  by  the  law  of  the  domicil  of 
the  owner,  wherever  in  point  of  fact  they  may  be  situ- 
ate. Qidn  tamcn  rcdione  mohilmm,  (says  Paul  Yoet,  a 
strenuous  opposer  of  the  general  doctrine  of  the  extra- 
territorial operation  of  statutes,)  uhiciinqiie  sitorum,  do- 
miciUiim  seu  personam  domini  sequamur^  Burgundus 
says  :  Sed  tamen,  ut  existimem,  hona  moventia,  et  mohilia, 
ita  comitari  personam,  id  extra  domicilium  ejus  censeantiir 


1  Ibid.  ;  Bank  of  Washington  v.  Triplett,  2  Peters,  Sup.  C.  R.  30,  34  ; 
ante,  §  316  to  ^  347;  Pardessus,  Tom.  S.  P.  Chitty  on  Bills,  p.  407, 
8th  Lond.  edit.  ;  Id.  p.  193;  S.  P.  2  Boullenois,  Observ.  23,  p.  531,  532, 
and  Mascard.  Conclus.  7,  n.  72,  there  cited, 

2  Thorne  v.  Watkins,  2  Ves.  35  ;  1  Boullenois,  Observ.  20,  p.  348  ; 
Liverm.  Diss.  ^  251,  p.  162,  1C3  ;  P.  Voet,  de  Statut.  ch.  2,  ^  4,  n.  8, 
p.  126,  edit.  1715  ;  Id.  p.  139,  edit.  1661  ;  post,  ^  377,  378. 

3  Kames  on  Equity,  B.  3,  ch.  8,  ^  3,  4  ;  Dwarris  on  Statutes,  Pt.  2, 
p.  650;  Liverm.  Diss.  §  251,  252,  254,  p.  162,  163,  167  ;  Fcelix,  Conflit 
des  Lois,  Revue  Etrang.  et  Franc.  Tom.  7,  1840,  ^  32,  p.  221  to  p.  226 ; 
Id.  ^  33,  p.  227,  228  ;  Christinaeus,  ad  Cod.  Lib.  1,  tit.  1,  Decis.  5,  n.  1, 
2,  3,  p.  7  ;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  777  ; 
post,  ^  376  to  ^  385,  ^  395  to  ^  400. 

4  P.  Voet,  De  Statut.  ^  4,  ch.  2,  n.  8,  p.  126  ;  Id.   p.   139,   140,  edit. 
1661. 


CH.  VIII.]  FOREIGN    CONTRACTS.  599 

existere,  addiici  sane  noii  possum}  Rodenburg  says  the 
same.  Diximiis,  mohilia  sitwn  habere  intelligi,  iiU  dominus 
instruxerit  domicilium,  nee  aliter  mutare  eiindem,  qiiani  una 
cum  domiciUor  He  goes  on  to  assign  the  reasons,  found- 
ed upon  the  perpetually  changeable  location  of  mova- 
bles. Pothier  is  equally  expressive  on  the  same  point.^ 
Indeed,  the  doctrine  is  so  firmly  established,  that  it 
would  be  a  waste  of  time  to  go  over  the  authorities ;  ^ 


1  Burgundus,  Tract.  2,  n.  20,  p.  71. 

2  Rodenburg,  De  Diver.  Stat.  lit.  2,  ch.  2,  n.  1  ;  2  BouUenois,  Appx. 
p.  14,  15. 

3  Post,  '^  381. 

4  See  Bouhier,  Coutura.  de  Bourg.  ch.  21,  ^  172,  p.  408  ;  Id.  ch.  22, 
^  79,  p.  429  ;  Id.  ch.  25,  ^  5,  6,  p.  490  ;  Pothier,  Des  Choses,  Tom.  8, 
P.  2,  §  3,  p.  109,  110  ;  Id.  Coutum.  d'0rl6ans,  Tom.  10,  n.  24,  p.  7  ;  2 
Bell,  Comm.  684,  685,  4lh  edit.  ;  Bruce  v.  Bruce,  2  Bos.  &  Pull.  230  ; 
Sill  V.  Worswick,  1  H.  Bl.  690,  691  ;  In  Re,  Ewing,  1  Tyrwhilt,  R.  91  ; 
Thorne  v.  Watkins,  2  Ves.  R.  35  ;  4  Cowen,  R.  517,  note  ;  Blanchard 
V.  Russell,  13  Mass.  R.  6  ;  Liverm.  Diss.  163,  164  to  171  ;  Foelix,  Con- 
flit  des  Lois,  Revue  Strang,  et  Franc.  Tom.  7,  1840,  ^  31,  p.  220,  ^  32, 
p.  221  to  ^  36,  p.  229. — There  are  some  few  jurists,  who  seem  to  dis- 
sent from  the  doctrine,  either  in  a  qualified  or  absolute  manner,  who  are 
cited  by  Mr.  Fcelix.  He  enumerates  Tittman,  Muhlenbruch,  and  Eich- 
horn.  Id.  p.  223,  224.  John  Voet  has  expounded  this  whole  doctrine 
very  fully.  Atque  ita  (says  he)  evictum  hactenus  existimo,  in  omnibus 
statutis,  realibus,  personalibus,  mixtis,  aut  quacunque  alia  sive  denomina- 
tione  sive  divisione  concipiendis,  verissimam  esse  regulam,  perdere  omnino 
officium  suum  statuta  extra  territorium  statuentis  ;  neque  judicem  alterius 
regionis,  quantum  ad  res  in  suo  territorio  sitas,  ex  necessitate  quadam 
juris  obstrictum  esse,  ut  sequatur  probetve  leges  non  suas.  In  eo  tamen 
forte  scrupulus  hseserit  ;  si  scilicet  haec  ita  sint,  qui  ergo  fiat,  quod  vulgo 
reperitur  traditum,  in  successionibus,  testandi  facultate,contractibus,  aliis- 
que,  mobilia  ubicunque  sita  regi  debere  domicilii  jure,  non  vero  legibus 
loci  illius,  in  quo  naturaliter  sunt  constituta  ;  videri  enim  hac  saltern  ra- 
tione  jurisdictionem  judicis  domicilii  non  raro  ultra  statuentis  fines  operari 
in  res  dispersas  per  varia  aliorum  magistratuum,  etiam  remotissimis  ad 
orientem  occiduumque  solem  regionibus  imperitantium,  territoria.  Sed 
considerandum,  quadam  fictione  juris,  seu  mails,  piscsumptionc,  hanc  de 
mobilibus  determinationem  conseptam  niti :  cum  enim  certo  stabilique  ha;c 
situ  careant,  nee  carlo  sint  alligata  loco  ;  sed  ad  arbitrium  domini  undi- 
quaque  in  domicilii  locum  revocari  facile  ac  reduci  possint,  et  maximum 


600  CONFLICT    OF   LAWS.  [CH.  VIIL 

and  especially  as  the  same  subject  will  occur,  in  a  more 
general  form,  in  the  succeeding  chapter.^ 

§  362  a.  Debts,  in  the  vocabulary  of  the  civil  law, 
are  often  known  by  the  title  of  Nomina  deUtorum  ;  ^ 


domino  plerumque  commcJum  adferre  soleant,  cum  ei  sunt  prassenlia  ; 
visum  fuit,  hanc  inde  conjecturara  surgere,  quod  dominus  velle  censeaiur, 
ut  illic  omnia  sua  sint  mobilia,  aut  saltern  esse  intelligantur,  ubi  fortuna- 
rum  suarum  larem  summamque  constituit,  id  est,  in  loco  domicilii.  Pro- 
inde  si  quid  domicilii  judex  constitueril,  id  ad  mobilia  ubicunque  sita  non 
alia  pertinebit  ratione,  quam  quia  ilia  in  ipso  domicilii  loco  esse  concipiun- 
tur.  Si  tamen  has  juris  fictiones  quis  a  ratione  naturali,  in  hisce  solum 
consideranda,  alienas  putet,  quippe  desiderantes  unum  communem  legis- 
latorem,  lege  sua  fictiones  tales  introducentem  ac  stabilientem  ;  non  equi- 
dera  repugnaverim,  atque  adeo  tunc  hoc  ipsum  comitati,  quam  gens  genti 
praestat,  magis,  quam  rigori  juris,  et  summae  potestati,  quam  quisque  ma- 
gistratus  in  mobilia,  suo  in  territorio  constituta,  habet,  adscribendum  pu- 
tem.  Praesertira  cum  considero,  subinde  per  magistratus  loci,  in  quo 
mobilia  vete  existunt,  de  illis  ea  constitui  sancirique,  quae  domicilii  judici 
displicere  possent.  Quid  enim,  si  domicilii  judex  frumenta  importari 
jubeat,  penuria  frugum  vexata  regions  ;  incola  spe  lucri  majoris  frumenta 
sua,  in  alia  regione  horreis  recondita  inferre  desiderit  ;  regioni  vero  isti 
imperans  omnem  vetuerit  frugum  expottationem,  jure  suo  in  sui  territorii 
frumentis  usus  ?  Quis  hie  obsecro  negare  sustineat,  mobilia  regi  lege  loci, 
in  quo  vere  sunt,  non  in  quo  ob  domicilium  domini  esse  finguntur.  Nee 
minus  id  in  rerum  publicationibus  ex  delicto  apparet,  in  quantum  fisco  loci, 
in  quo  reus  condemnatus  est,  non  sunt  cessura  bona  omnia  mobilia  ubicun- 
que sita,  sed  ea  sola,  quae  in  loco  condemnantis  inveniuntur  ;  nisi  aliud  ex 
comitate  alicubi  servetur.  Nee  dicam,  variare  de  rebus  quibusdam  locorum 
plurimorum  statuta,  utrum  mobilibus  illae,  an  immobilibus  accensendse  sint ; 
nee  novum  esse,  ut  qua;  una  in  regione  mobilia  habentur,  immobilium  ca- 
talogo  alibi  adscripta  inveniantur  ;  annui,  vcrbi  gratia,  reditus  a  Provincia 
debiti,  in  HoUandia  mobiles,  immobiles  Trajecli  :  arbores  grandiores  solo 
ha^rentes  passim  immobiles,  mobiles  tamen  in  Flandria  habitcc.  Quo  posi- 
to,  necesse  fuerit,  ut,  qua;  in  domicilii  loco  mobilia  habentur,  immobilia 
vero  illic  ubi  sunt,  regantur  lege  loci  in  quo  vere  sunt,  magistratu  ne  ex 
comitate  quidem  permissuro,  ut  quasi  mobilia  domicilii  dominici  seque- 
rentur  jura.  J.  Voet,  ad  Pand.  Lib.  1,  tit.  4,  P°.  2,  §  11,  p.  44,45  ;  post, 
^81,482. 

1  Post,  ^  374  to  ^401. 

2  Ersk.  Inst.  B.  3,  tit.  9,  §  4  ;  Cujaccii,  Opera,  Tom.  7,  p.  491,  edit. 
1758 ;  Dig.  Lib.  10,  tit.  2,  L  2,  ^  6  ;  Vicat.  Vocab.  Voce,  Noraen. 


CH.  VIII.]  FOREIGN    CONTRACTS.  601 

and  they  also  follow  the  person  of  the  owner,  or,  as 
Jason  says  :  Nomina  infixa  sunt  ejus  ossibus}  Burgun- 
dus  also  says  :  Nomina  et  actiones  loco  non  circiimscribun- 
tur,  quia  sunt  incorporalcs  ;  tamen  et  ihi  jyer  fidionem  esse 
intcliiffuntu?',  uhi  creditor  liabet  domicilium.  Nam^  quod 
quidam  ossibus  creditoris,  esse  affixa  putant,  non  magis  mo- 
vet,  quam  si  dicamiis,  dominium  fundi  esse  in  p)^^oprietario  ; 
cum  alioquin,  si  quis  striciius  interprctetur^  aliud  est  fundus^ 
aliud  dominium  ;  sicuti  aliud  est  obligaiio,  aliud  creditum.~  D  u- 
moulin  is  equally  explicit.  Nomina  et  jura,  et  quce- 
cumque  incorporalia,  non  circumscribantur  loco  ;  et  sic  non 
opus  est  accedere  ad  cerium  locum.  Turn  si  hwc  jura  ali- 
cubi  esse  censerentur,  non  reputarentur  esse  in  re  pro  illis 
liypothecata,  nee  in  debitoris  persona,  sed  magis  in  persona 
creditoris,  in  quo  active  resident,  et  ejus  ossibus  inhcerent? 

§  3G2  b.  The  language  of  Hertius  is  ;  Mobilibus  in- 
terdum  eiiam  5<«t'  ('ivuloyiuv  {iiam  proprie  neque  mobiles  sunt, 
nee  immobiles,)  acccnsentur  res  incorporales^  Huberus 
holds  them  to  fall  under  the  class  of  movables.^  Paul 
Voet  says  :  Verum,  quid  de  nominibus  et  actionibus  siatu- 
endimi  erit  ?  Respondeo,  quia  proprie  loquendo,  nee  mobi- 
liam  nee  immobiiiam  veniunt  appellatione ;  Etiam  vere  non 
sunt  in  loco,  quia  incorporalia.  Ideo  non  sine  distinctione 
res  temperari  poterit.  Aut  igiturrealis  erit  actio,  iendens  ad 
immobilia,  et  spectaUtur  statutum  loci  situs  immobiUum.  Aut 
erit  actio  realis  spectans  mobilia,  et  idem  servandum  erit,  quod 


1   1  Boullenois,  Observ.  20,  p.  348. 

-  BuriTuiidus,  Tract.  2,  n.  33,  p.  73. 

•^  Dumoulin,  Conim.  de  Consuetud.  Paris.  Tom.  1,  De  Fiefs,  tit.  1, 
gloss.  4,  n.  9,  p.  56,  57  ;  Liverm.  Dissert.  ^  251,  p.  162,  163  ;  3  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  777  ;  post,  ^  3U2  to 
§400. 

4  Hertii,  Opera,  De  Collis.  Leg.  §  4,  n.  G,  p.  122, 123,  edit.  1737;  Id. 
p.  174,  edit.  171G. 

5  Ibid. 

CONFL.  51 


602  CONFLICT    OF   LAWS.  [CH.  YIIL 

de  mohilihiis  dictum  est.  Aut  crit  actio  loersonalis  sive  ad 
mohilia  sive  ad  immoUlia ^yertinens,  qiice  cum  inhcereat  ossibus 
personcB,  statutiim  loci  creditorum  cestimari  dehehit} 

§  363.  But  a  question  of  a  very  different  character 
may  arise,  as  to  executory  contracts  respecting  real 
estate,  or  immovables.  Are  they  governed  by  the  law 
of  the  place  where  the  contract  is  made  ?  Or  by  the 
law  of  the  place  where  the  property  is  situate  ?  Take, 
for  instance,  the  case  of  a  contract  for  the  purchase  or 
sale  of  lands  in  England  or  in  America,  arising  under 
the  Statute  of  Frauds,  by  which  all  contracts  respecting 
real  estate,  or  any  interest  therein,  are  required  to  be  in 
writing;  and  otherwise  they  are  A^oid.  If  such  a  con- 
tract is  made  in  France  by  parol,  or  otherwise,  in  a  man- 
ner not  conformable  to  the  law  m  sitce,  for  the  purchase 
or  sale  of  lands  situate  in  England  or  in  America,  and 
the  contract  is  conformable  to  the  law  of  France  on  the 
same  subject ;  is  the  contract  valid  in  both  countries  ? 
Is  it  valid  in  the  country  where  the  land  lies,  so  as  to 
be  enforced  there  ?  If  not,  is  it  valid  in  the  country 
where  the  contract  was  made  ?  ^ 

§  364.  If  this  question  were  to  be  decided  exclusively 
by  the  law  of  England,  it  might  be  stated,  that,  by  the 
law  of  England,  such  a  contract  would  be  utterly  void ; 
and  it  would  be  so  held  in  a  suit  brought  to  enforce  it 
in  that  realm,  upon  the  ground,  that  all  real  contracts 
must  be  governed  by  the  Lex  m  sitw?     Lord  Mansfield 


1  P.  Voet,  U.  Statut.  ^  9,  cli  1,  n.  11,  p.  256,  edit.  1715,  p.  312,  313, 
edit.  1661. 

2  Ante,  §  262  ;  post,  ^  435,  430  to  445.  See  2  Burge,  Comm.  on  Col. 
and  For.  Law,  Pt.  2,  ch.  9,  p.  840  to  p.  871  ;  4  Burge,  Comm.  Pt.  2,  ch. 
5,  ^  11,  p.  217. 

3  See  2  Dvvarris  on  Statut.  648;  Warrender  v.  Warrender,  9  Bligh,  R. 
127,  128  ;  ante,  '^  351  d. 


CH.  viil]  foreign  contracts.  603 

took  occasion,  in  a  celebrated  case,  to  examine  and  state 
the  principle.  "There  is  a  distinction"  (said  he)  '  be- 
tween local  and  personal  statutes.  Local  ones  regard 
such  things  as  are  really  upon  the  spot  in  England  ;  as 
the  Statute  of  Frauds,  which  respects  lands  situate  in 
this  kingdom.  So  stockjobbing  contracts,  and  the  Sta- 
tutes thereupon,  have  a  reference  to  our  local  funds. 
And  so  the  statutes  for  restraining  insurances  upon  the 
exportation  of  wool  respect  our  own  ports  and  shores. 
Personal  statutes  respect  transitory  contracts,  as  com- 
mon loans  and  insurances."  ^  And  in  another  report  of 
the  same  case,  after  a  second  argument,  he  said :  "  In 
every  disposition  or  contract,  where  the  subject-matter 
relates  locally  to  England,  the  law  of  England  must 
govern  ;  and  must  have  been  intended  to  govern. 
Thus,  a  conveyance  or  will  of  land,  a  mortgage,  a 
contract  concerning  stocks,  must  all  be  sued  upon  in 
England  ;  and  the  local  nature  of  the  thing  requires 
them  to  be  carried  into  execution  according  to  the  law 
here."  2  .         ' 


1  Robinson  v.  Bland,  1  W.  Black.  R.  234,  246  ;  post,  §  383,  and  note. 

2  Robinson  v.  Bland,  2  Burr.  R.  1079  ;  S.  P.  1  W.  Black.  R.  259.  See 
also  Ersk.  Inst.  B.  3,  tit.  9,  i^  4  ;  Henry  on  For.  Law,  p.  12  to  15  ;  Scott 
V.  Alnut,  2  Dow  &  Clarke,  404.  See  also  Selkrig  v.  Davis,  2  Dow,  R. 
230,  250  ;  post,  i^*  383,  435. — Mr.  Burge,  speaking  on  this  subject,  says  : 
"  There  is  an  entire  concurrence  amongst  them  (jurists)  in  considering,  that 
the  title  to  movables,  or  the  validity  of  any  disposition  of  them,  is  not  go- 
verned by  the  law  of  their  actual  situs.  This,  which  may  be  regarded  as 
a  general  rule,  is  subject  to  this  qualification,  that  the  law  of  the  country 
in  which  the  movable  may  be  actually  situated,  has  not  prescribed  some 
particular  mode  by  which  alone  the  movable  can  be  transferred.  Thus, 
property  in  the  public  funds  or  stocks,  shares  in  companies,  joint  stocks, 
&c.,  is  a  species  of  personal  property,  which,  as  it  is  created,  so  it  is  reg- 
ulated by  the  law  of  the  country  in  which  it  exists.  Certain  forms  are 
prescribed  by  which  alone  the  holder  of  any  share  or  interest  can  transfer 
it.  Here  the  transfer  is  so  far  subject  to  the  law  of  the  place  where  the 
property  is  situated,  that  the  legal  title  to  it  is  not  acquired  unless  those 


604  CONFLICT    OF    LAWS.  [CIL    VIII. 

§  365.  The  same  doctrine  has  been  laid  down  in 
equally  emphatic  terms  in  the  Scottish  courts.  Lord 
Robertson  in  a  highly  interesting  case  said  :  "  Although 
the  rule  as  to  the  Lex  loci  contractus,  is  of  very  general 
application,  particularly  as  to  the  constitution  and  valid- 
ity of  personal  contracts  and  obligations,  it  is  not  uni- 
versal. In  the  first  place,  it  does  not  apply  to  contracts 
or  obligations  relative  to  real  estates."  ^  Lord  Banna- 
tyne,  on  the  same  occasion,  aflirmed  the  like  principle." 


forms  are  observed.  Bat  although  the  contract  may,  in  consequence  of  a 
non-compliance  with  those  forms,  fail  in  conferring  the  legal  title  on  the 
diponee,  yet  it  will  give  him  a  right  to  compel  the  disponer,  by  action  or 
suit,  to  make  a  transfer  in  the  manner  required  by  the  local  law.  To  this 
limited  extent  the  lex  loci  rei  silEc  affects  and  controls  the  transfer  by  acts 
inter  vivos  of  certain  movables.  But  unless  the  local  law  gives  to  them  the 
quality  of  immovable  or  real,  as  it  may  do,  and  has  done  in  many  instan- 
ces, they  still,  as  subjects  of  succession,  are  governed  by  the  law  of  the 
owner's  domicil.  The  rule  is,  that  the  title  to  movable  property  is  go- 
verned by  the  law  of  the  place  of  the  owner's  domicil ;  and  this  rule  is  uni- 
formly applied  in  deciding  on  the  title  to  movable  property  as  a  subject  of 
succession.  The  law  of  the  owner's'domicil  is  not  that  which  exclusively 
decides  on  the  title  to  movable  property,  as  a  subject  of  transfer  and  acqui- 
sition by  acts  inter  vivos.  When  contracts  of  purchase  and  sale,  mortgage 
or  pledge,  are  completed  in  a  place  which  is  not  the  domicil  of  the 
owner,  the  validity  of  such  contracts  and  the  rights  and  obligations  which 
they  confer,  are  governed  by  the  law  of  the  country  in  which  they  are 
completed.  '  Semper  in  stipulationibus,  et  in  caeteris  contractibus  'id  se- 
quimur,  quod  actum  est ;  aut  si  non  pareat,  quid  actum  est,  erit  conse- 
quens,  ut  id  sequamur,  quod  in  regione,  in  qua  actum  est,  frequentatur.' 
'  Generaliter  enim  in  omnibus,  qua^  ad  formam  ejusque  perfectionem  perti- 
nent, spectanda  est  consuetude  regionis,  nbi  sit  negotiatio,  quia  consuetude 
influit  in  contractus,  et  videfur  ad  eos  respicere,  et  voluntatem  suam  eis 
accommodare.' "  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch. 
20,  p.  751,  752  ;  2  Burge,  Comm.  Pt.  2,  ch.  9,  p.  863  to  p.  870.  See  post, 
^434. 

1  Fergusson  on  Marr.  and  Div.  p.  395;  Id.  397.  See  Ersk.  Inst.  B.  3, 
tit.  2,  ^  40,  p.  515  ;  post,  ^  43G,  and  note. 

2  Fergusson  on  Marr.  and  Div.  p.  401  ;  2  Kaims  on  Equity,  B.  3,  ch. 
2,  ^  2. — Erskine,  in  his  Institutes,  seems  to  assert  a  more  modified  doc- 
trine.    He  says  :  "  All  personal  obligations  or  contracts  entered  into  ac- 


en.  VIII.]  FOREIGN    CONTRACTS.  605 

And  it  lias  received  an  unequivocal  sanction  in  Ame- 
rica ;  where  it  has  been  broadly  declared  to  be  a  well 
settled  rule,  that  any  title  or  interest  in  land,  or  in  other 
real  estate,  can  only  be  acquired  or  lost  agreeably  to 
the  law  of  the  place  where  the  same  is  situate.' 

§  365  a.  Paul  Voet  has  expressed  the  same  opinion. 
Quid  si  itaqiie  conteMio  de  aliqiio  jure  in  re,  sett  ex  ipsa  se 
desccndente  ?  Vel  ex  contractu,  vel  actione  personali,  scd  in 
rem  scripta  ?  An  spectabitur  loci  statutiim,  ubi  dominus 
hahet  domicilium,  an  statutum  rei  sitw  ?  Respondeo  ; 
Statutiim  rei  sitcc.  TJt  tamen  actio  etiam  intentari  possit, 
ubi  Reus  hahet  domicilium.  Idcpie  obtinet,  sive  forensis  sit 
ille,  de  cujus  re  controversia  est,  sive  incola  loci,  ubi  res  est 
sita? 

§  366.  This  doctrine  may  be  farther  illustrated  by 
the  case  of  Scotch  heritable  bonds.  By  heritable  bonds 
in  that  law  are  meant  bonds  for  the  payment  of  money, 
which  are  secured  by  a  conveyance  or  charge  upon  real 
estate.  Such  bonds  usually  contain  not  only  a  charge 
upon  real  estate,  but  a  p^'sonal  obligation  to  pay  the 


cording  to  the  law  of  the  place  where  they  are  signed,  or  as  it  is  expressed 
in  the  Roman  Law,  secundem  legem  domicilii,  vel  loci  contractus,  are 
deemed  effectual  when  they  come  to  receive  execution  in  Scotland,  as  if 
they  had  been  perfected  in  the  Scotch  form.  And  this  holds  even  in  such 
obligations  as  bind  the  grantor  to  convey  subjects  within  Scotland  ;  for 
where  one  becomes  bound  by  a  lawful  obligation,  he  cannot  cease  to  be 
bound  by  changing  places."  Yet  Erskine  afterwards  adds,  that  if  an 
actual  conveyance  of  the  property  had  been  made,  not  according  to  the 
Scotch  forms,  the  courts  of  Scotland  would  not  compel  the  party  to  con- 
vey, nor  treat  it  as  an  obligation  of  the  grantor  to  execute  a  more  perfect 
conveyance.    Ersk.  Inst.  13.  3,  tit.  3,  ^  40,  41,  p.  515.     See  post,  ^^  436. 

1  Cutter  V.  Davenport,  1  Pick.  R.  81  ;  Hosford  v.  Nichols,  1  Paige,  R. 
220  ;  Wills  v.  Cowper,  2  Ilamm.  R.  124  ;  S.  C.  Wilcox,  R.  278  ;  post, 
^  424,  427,  435. 

2  P.  Voet,  de  Statut.  §  9,  ch.  1,  n.  2,  p.  250,  edit.  1715  ;  Id.  p.  305, 
edit.  1G61  ;  post,  6»  426,  ^  442. 

51* 


606  CONFLICT    OF   LAWS.  [CH.  VIII. 

debt.  In  general,  by  the  Scotch  law,  mere  personal 
bonds  and  other  debts,  on  the  decease  of  the  creditor, 
pass  to  his  personal  representative ;  but  heritable  bonds 
belong  to  the  heir ;  because  the  charge  on  the  real 
estate,  he'mg jus  nobilius,  draws  to  it  the  personal  right 
to  the  debt.  According  to  the  Scotch  law,  no  contract 
or  other  act,  disposing  of  an  heritable  bond,  will  be 
good,  unless  it  is  according  to  the  law  of  Scotland  ;  and 
no  contract,  intended  to  create  such  a  heritable  bond, 
will  be  valid,  as  such,  unless  it  be  made  with  the 
solemnities  of  the  Scotch  law.^  There  are  other  col- 
lateral consequences  growing  out  of  the  same  doctrine. 
Thus,  if  a  Scotch  heir  should  seek  to  be  exonerated 
from  a  heritable  bond  by  the  application  of  the  personal 
assets  in  England,  his  right  would  depend  upon  the  law 
of  Scotland,  that  is,  the  law  of  the  place  where  the  real 
estate  was  situate  ;  and  would  not  depend  upon  the 
law  of  the  place  where  the  personal  estate  happened 
locally  to  be.^ 

§  367.  The  same  reasoning  seems  to  have  governed 
in  the  House  of  Lords  in  a  recent  case,  where  certain 
entailed  estates  in  Scotland  were  sold  for  the  redemp- 
tion of  the  land  tax,  and  the  surplus  money  of  the  pro- 
ceeds of  the  sale  was  vested,  according  to  a  statute  on 


1  Ersk.  Inst.  B.  2,  ch.  2,  <5,  9  to  ^  20,  p.  198  to  p.  204  ;  Id.  B.  3,  tit.  2, 
§  39,  40,  41,  p.  514,  515  ;  Jerningham  v.  Herbert,  1  Tamlyn,  R.  103; 
2  Bell,  Comm.  ^  668,  p.  7,  8  ;  Id.  ^  1266,  p.  090,  4th  edit.  ;  Id.  p.  687, 
5th  edit.  ;  post,  ^  485  to  ^  489.  —  Yet  Mr.  Erskine,  in  his  Institutes, 
seems  to  admit,  that  obligations  to  convey  things  in  Scotland,  although  not 
perfected  in  the  Scottish  form,  yet  if  perfected  according  to  the  Lex  domi- 
cilii of  the  parties,  are  binding  in  Scotland,  not  as  conveyances,  but  as 
contracts,  under  some  circumstances.     Ante,  ^  365,  note  2. 

2  Elliott  V.  Lord  Minto,  6  Madd.  R.  16  ;  Earl  of  VVinchelsea  v.  Ga- 
retty,  2  Keen,  R.  293,  309,  310;  ante,  ^  266  a.  See  also  4  Burge, 
Comm.  on  Col.  and  For,  Law,  ch.  15,  §  4,  p.  722  et  seq. 


Cfl.  VIII.]  FOREIGN    CONTRACTS.  607 

the  subject,  in  trustees,  who  were  required  to  pay  the 
interest  of  it  to  the  heir  of  entail  in  possession,  until 
the  money  should  be  reinvested  in  land.  The  heir  of 
entail  next  entitled  sold  his  reversionary  and  contingent 
right  to  the  interest  of  this  fund  by  a  deed  in  the  Eng- 
lish form,  and  executed  in  England,  where  the  parties 
were  domiciled,  but  without  the  solemnities  required 
by  the  law  of  Scotland.  It  was  admitted,  that  the 
fund  was  to  go  to  the  heirs  in  entail,  and  that  the  prin- 
cipal thereof  was  consequently  heritable,  and  could  only 
be  passed  according  to  the  solemnities  of  the  law  of 
Scotland.  But  the  House  of  Lords  adjudged  the  inter- 
mediate interest  of  the  surplus,  before  the  investment 
in  lands,  to  be  movable  property,  and  alienable  by  the 
proprietor,  as  such ;  and,  therefore,  they  held  the  as- 
signment of  it  according  to  the  English  law  good.^ 

§  368.  From  what  has  been  already  stated  in  the 
preceding  discussions,  it  will  be  seen,  that  foreign 
jurists  are  by  no  means  agreed  in  admitting  the  gene- 
ral doctrine.^  On  the  contrary  some  of  them  maintain 
that  the  validity  of  a  contract  is,  in  all  cases,  to  be 
governed  by  the  law  of  the  place,  where  it  is  made, 
whether  it  regards  movables  or  immovables.^  Thus,  in 
respect  to  the  capacity  of  persons  to  contract,  their  doc- 
trine is,  that,  if  they  are  of  age  to  contract  in  the  place 


1  Scott  V.  Alnutt,  2  Dow  &  Clark,  404,  412. 

2  Ante,  §  260  to  ^  263.  See  also  ante,  §  82,  ^  325  to  ^  327  ;  post, 
§  369  to  ^  373,  §  474  to  ^  479.  See  2  Burge,  Comin.  on  Col.  and  For. 
Law,  Pt.  2,  ch.  9,  p.  840  to  p.  871. 

3  Ante,  (}  52,  53,  60,  61,  62  ;  post,  ^  435  to  ^  445.  See  also  Foelix, 
Conflit  des  Lois,  Revue  Strang,  et  Franc.  Tom.  7,  1840,  ^  37,  p.  307  to 
p.  311  ;  Id.  p.  352  to  360  ;  post,  ^  371  f,  note.  —  Mr.  Burge  has  made  a 
large  collection  of  the  various  opinions  of  foreign  jurists  on  this  subject. 
3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  9,  p.  840  to  p.  871. 


G08  CONFLICT    OF   LAWS.  [CH.   VIII. 

of  their  domicil,  but  are  not  in  the  place,  where  their 
immovable  property  is  situate,  the  contract  to  sell  or 
alienate  the  latter  will  be  valid  everywhere  ;  and  so, 
vice  versa}  Others  hold  a  different  opinion,  and  insist, 
that,  whatever  may  be  the  law  of  the  domicil,  as  to 
capacity,  and  although  it  governs  the  person  univer- 
sally, yet  it  does  not  apply  to  immovable  property  in 
another  country.^ 


1  Ante,  1^  51  to  1^  54,  ^5*  58  to  ^  63  ;  post,  ^  430  to  ^  435  ;  Rodenburg, 
tit.  1,  ch.  3  ;  Id.  tit.  2,  ch.  3  ;  Liverm.  Diss.  ^  44,  45,  46,  p.  48,  49 ;  Id. 
§55,56,  p.  56;  Id.  §58,  59,  p.  58  ;  1  Boullenois,  Observ.  2,  p.  27  ; 
Id.  p.  145;  Id.  Observ.  9,  p.  152,  153,  154  ;  Id.  Observ.  12,  p.  175  to 
p.  177;  Id.  Observ.  23,  p.  456  to  p.  460;  1  Froland,  M6m.  156,  160. 
See  on  this  point  Fcelix,  Conflit  des  Lois,  Revue  Etrang.  et  Franc.  Tom. 
7,  1840,  §  27  to  §  33,  p.  216  to  p.  228  ;  2  Burge,  Comm.  on  Col.  and 
For.  Law,  Pt.  2,  ch.  9,  p.  840  to  p.  870. 

2  Ante,  §  54  to  §  62  ;  post,  §  430,  431,  432,  §  435  to  §  445  ;  Liverm. 
Diss.  §  44,  p.  48,  49  ;  Id.  46  to  §  53,  p.  49  to  §  53  ;  Id.  §  59,  p.  58.  See 
1  Boullenois,  Observ.  6,  p.  127  to  30,  135;  Id.  Observ.  9,  p.  150  to  156  ; 
J.  Voet  ad  Band.  Lib.  1,  tit.  4,  §  7,  p.  40  ;  2  Froland,  JVUm  des  Stat. 
821.  ■ — There  are  some  nice  distinctions  put  by  different  authors  upon  this 
subject,  which  are  stated  wiih  great  clearness  and  force  by  Mr.  Livermore, 
(Dissert.  §  58,  p.  58  to  62,)  and  upon  which  we  may  have  occasion  to 
comment  more  fully  hereafter.  At  present  it  is  only  necessary  to  say, 
that  Boullenois,  Bouhier,  and  others  hold,  that,  while  the  law  of  the  do- 
micil, as  to  general  capacity,  governs  as  to  contracts  and  property  every- 
where, the  law  of  the  situs  of  immovable  property  governs,  as  to  the 
quantity,  which  the  party,  having  full  capacity,  may  sell,  convey,  or  dis- 
pose of.  See  Livermore,  Diss.  §  58  to  §  63,  p.  58  ;  1  Boullenois,  Prin. 
G6n.  8,  p.  7  ;  Id.  Observ.  6,  p.  127  to  133  ;  Id.  Observ.  12,  p.  172,  175 
to  178 ;  Id.  Observ.  13,  p.  177,  183,  184,  188,  189  ;  Bouhier,  Gout,  de 
Bourg.  ch.  21,  §68  to  §  70;  Id.  §  81  to  84.  See  also  1  Boullenois, 
Observ.  5,  p.  101,  102,  107,  111,  112;  2  Henrys,  CEuvres,  Lib.  4, 
ch.  6,  Quest.  105.  Rodenburg  seems  to  admit,  that  a  contract  respect- 
ing real  property,  which  is  entered  into  according  to  the  forms  of  the  Lex 
loci  contractus  may  be  good  to  bind  the  parly  personally,  although  it  is 
not  according  to  the  forms  prescribed  by  the  Lex  rei  sitae.  Fi.odenburg, 
tit.  2,  ch.  3  ;  1  Boullenois,  414,  415,  416;  2  Boullenois,  Appx.  p.  19. 
Mr.  Fcelix  has  enumerated  many  of  the  jurists  on  each  side  of  this  ques- 
tion in  his  dissertation  on  the  Conflict  of  Law.  Foelix,  Conflix  des 
Lois,    Revue  Etrang.  et  Franc.    1840,  Tom.   7,  §  27  to  §  32,  p.  210 


CH.  Vni.]  FOREIGN    CONTRACTS,  609 

§  369.     So,  in  respect  to  express  nuptial  contracts 
we  have  seen,  that  many  foreign  jurists  hold  them  obliga- 


te p.  221  ;  2  Burge,  Comm.  on  Col.  and  P'or.  Law,  Pt.  2,  cli.  9,  p.  840 
to  p.  870.  Muhlenbruch,  who  is  a  very  modern  author,  and  is  cited 
by  Mr.  Foelix,  has  a  single  passage  on  the  subject,  which,  from  its  gene- 
rality, may  serve  to  show  how  difficult  it  is  to  obtain  any  certainty  as 
to  the  exact  opinion  of  foreign  jurists  on  the  various  questions  which  may 
arise  from  the  conflict  of  laws  as  to  personal  capacity,  contracts,  and  rights 
to  property.  He  lays  down  the  following  rules  on  the  subject :  (1.)  Jura 
atque  officia  ejusmodi,  quae  hominum  personis  inherent,  et  quasi  sunt  in- 
fixa,  ex  bisque  apte  pandemia,  turn  etiam  ea,  qua3  ad  universitatem  patri- 
monii pertinent,  ex  legibus  judicanda  sunt,  quae  in  civilate  valent,  ubi  is, 
de  quo  quseritur,  larem  rerumque  ac  fortunarum  suarum  summam  consti- 
tuit,  scilicet  non  adversante  exterarum  civitatum  jure  publico,  Enimvero 
mutato  domicilio  jura  quoque  hujusmodi  mutantur,  sic  tamen,  ut  ne  cui 
jus  ex  pristina  ratione  quEesitum,  certisque  suis  terminis  jam  definitum 
eripiatur.  (2.)  Jura,  qua3  proxime  rebus  sunt  scripta,  velut  qu;e  ad  do- 
miiiii  causam  spectant,  vel  ad  vectigalium  tributorumque  onus,  vel  ad  pig- 
norum  in  judicali  exsecutioneui  et  capiendorum  et  distrahendorum,  turn 
etiam  rerum  apud  judicem  petendarum  persequendarumve  rationem,  et 
qua;  sunt  reliqua  ex  hoc  genere,  sestimantur  ex  legibus  ejus  civitalis,  ubi 
sitae  sunt  res,  de  quibus  agitur,  atque  collocatae,  nuUo  rerum  immobilium 
atque  mobilium  habito  discrimine.  (3.)  Negotiorum  rationem  quod  atti- 
net,  de  forma  quidem,  quatenus  non  nisi  ad  fidem  auctoritalemque  negotio 
conciliandam  valeat,  nee  in  aliarum  legum  fraudem  actum  sit,  non  est, 
quod  dubilemus,  quin  accommodate  ad  ejus  loci  instituta,  ubi  geritur  res, 
dirigenda  sit  atque  tustimanda.  Nee  est,  quod  non  idem  statuamus  aut  de 
personis,  scilicet  possintne  omnino  jure  suo  et  velut  arbitrio  negotia  insti- 
tuere  ?  Aut  de  negotiorum  materia,  atque  vi  et  potestate,  quas  iis  cum 
per  se  insit,  tum  vero  quoad  agendi  excipiendique  facultatem,  hac  tamen 
itidem  adscripta  exceptione,  ut  ne  quid  in  aliena  civitate  fiat  contra  ejus- 
dem  civitalis  mores,  leges,  instituta,  ad  qute  immutanda  prorsus  nihil  valet 
privatorum  arbitrium.  Quid?  quod  omnino  sese,  qui  negotium  aliquod 
inslituerunt,  tacite  accommodasse  videri  possunt  ad  ejus  regionis  leges 
consueludinesve,  in'qua  ut  exitum  habeat  res,  de  qua  agitur,  aut  legum 
decreto,  aut  privatorum  auctoritate  certo  constitutum  est.  (4.)  Judex 
igilur,  qui  rem  apud  exteros  natam  judicabit,  ea  certe,  qua;  ad  formam 
modumque  litium  instituendarum  pertinent,  adjurium  normas  institutaque, 
quibus  ipse  paret,  dirigat  necesse  est.  In  reliquis  vero,  quatenus  aut 
idem  illud  servet  jus  domesticum,  aut  jus  exteris  scriptum,  tamquam  pri- 
vatorum vohiniate  constitutum,  in  judicando  sequatur,  id  ex  principiis 
modo  propositis  quisque  facile  intelliget.  Quil)us  etiam  h;fc  esse  consen- 
tanca  videntur,  ut  pnuscriplio  quidem  acquisiliva,  quam  vocant,  ex  juri- 


GIO  CONFLICT    OF   LAWS.  [CH.   VIII. 

tory  upon  all  property,  whether  movable  or  immovable, 
belonging  to  the  parties  in  other  countries,  if  they  are 
valid  by  the  law  of  the  place  of  the  nuptial  contract.^ 
And  in  respect  to  implied  nuptial  contracts,  all  those  ju- 
rists, who  maintain,  that  the  law  of  the  domicil  furnishes, 
in  the  absence  of  any  express  contract,  the  rule  to  ascer- 
tain the  rights  and  intentions  of  the  parties,  by  way  of 
tacit  contract,  necessarily  give  to  the  doctrine  the  same 
universal  operation.^ 

§  369  a.  Dumoulin  is  most  emphatic  upon  this  mat- 
ter. Primo,  in  sano  inteUedu,  (says  he,)  milium  habet 
diibium,  quin  societas  (he  is  speaking  of  cases  of  marriage) 
semel  contmcta,  complectatur  bona  ubicunqiie  sita,  sine  iilla 
differentia  territoriiy  qiiani  ad  modimi  quilihet  contractus^ 
sive  tacitus,  sive  expressus,  ligat  personam,  et  res  disponentis 
uUqiie.  Non  ohstat,  quod  Imjusmodi  societas  non  est  expres- 
sa,  sed  tacita,  nee  oritur  ex  contractu  expresso  partiiim,  sed 
ex  tacito,  vel prceswnpto  contractu  a  consuetudine  locali  intro- 
ducto? 

§  370.  Merlin  seems  to  think,  that,  although  in 
general  the  French  law  must  govern  in  all  cases  of 


bus  rei  sitrp,  extinctiva  vero  ex  judicii  accepti  legibus  ;i?3timanda  sit,  prte- 
terquam  quod  nihil  hac  quoque  ralione  juris  detrahatur  aclori,  si  forte  in- 
gratiis  suis  loco  baud  condicto  convenire  reum  cogatur  ;  «t  actiones,  quae 
vel  ad  rescindenda  negotia,  vel  ad  damna  resarcienda  comparatte  sunt, 
secundum  legis  loci,  iibi  res  acta  est,  judicentur,  nisi  si  ut  alio  loco  fiat 
solutio,  inter  partes  convenerit.  Ca}terum  quse  de  negotiorum  alibi  con- 
tractorum  in  alieno  territorio  vi  diximus  atque  potestate,  eadem  sententiis 
quoque  decretisque  a  judice  prolatis  apt  convenient.  Muhlenbrucb,  Doc 
trina  Pandectarum,  Tom.  1,  p.  IGO  to  170.  See  also  P.  Voet,  de  Statut. 
^  4,  ch.  2,  n.  15,  p.  127  ;  Id.  p.  142,  edit.  1601. 

1  Ante,  §  143  to  ^  160. 

2  Ante,  \  57,  §  143  to  §  171  ;  Boullenois,  Observ.  5,  p.   120,  121  ;  Id. 
p.  G73,  674  ;  Id.  Observ.  29,  p.  757  to  p.  767. 

3  Dumoulin,  Consil.   53,  Torn.  2,  ^  2,   p.  964,   edit.   1681  ;    2  Burge, 
Comm.  Pt.  2,  cb.  0,  p.  8fi4,  865  ;  ante,  ^  260. 


en.  VIII.]  FOREIGN   CONTRACTS.  611 

immovables  in  France,  even  "when  the  owners  are  fo- 
reigners ;  yet  that  there  are  exceptions  to  the  rule. 
As,  for  instance,  if  the  foreign  law,  in  the  country  where 
a  contract  is  made  respecting  immovables,  has  been 
adopted  by  the  contracting  parties,  and  converted  by 
them  into  an  express  contract ;  in  such  a  case,  he  holds 
that  the  contract  is  binding,  because  the  foreign  law, 
as  such,  does  not  act  upon  the  immovables  in  France, 
but  it  acts  solely  by  way  of  contract.^  And  he  ap- 
plies the  same  principle  to  cases  where  there  is  no  ex- 
press adoption  of  the  foreign  law,  but  where  it  arises 
by  way  of  tacit  contract  from  the  place  of  the  con- 
tract.^ 

§  371.  On  the  other  hand,  Pothier  treats  as  real  pro- 
perty, not  only  lands  and  houses  and  inheritable  pro- 
perty, but  also  all  rights  in  them,  and  growing  out  of 
them  ;  such  as  ground  rents,  or  other  rents  annexed  to 
lands  and  inheritances,  which  f;dl  under  the  denomina- 
tion  of  y«5  m  re  ;  and  also  all  rights  to  inheritances 
which  fall  under  the  denomination  oi  jus  ad  rem,  such 
as  contracts  or  debts  [creanccs)  respecting  the  sale  and 
delivery  of  immovable  property,  which  are  deemed  to 
have  the  same  situation  as  the  things  which  are  the  ob- 
ject of  them.  Les  choses,  qui  ont  ime  situation  veritable^ 
sont  les  heritages,  c'est  a  dire,  les  fondsde  terre,  les  maisons, 
et  tout  ce,  qui  en  fait  partie.  Les  droits  reels,  que  nous 
avons  dans  iin  heritage,  qu'on  appelle  Jus  in  re,  tels  qiHon 
droit  de  rente  fonciere,  de  champart,  &c.  sont  censes  avoir 
U  meme  situation,  que  cet  heritage.  Pareilment,  les  droits, 
que  nous  avons  a  un  heritage,  qu'on  ajjpelle  Jus  ad  rem, 
c'est  a  dire,  les  creances,  que  nous  avons  contre  quelqiCun, 


1  Merlin,  R^'pert.  Lois,  i5»  G,  n.  2,  3. 

2  Ibid. 


612  CONFLICT    OF   LAWS.  [CH.  VIIL 

qui  c'est  oblige  a  nous  donncr  un  certain  heritage^  sont  ceri- 
ses avoir  la  meme  situation,  que  r/iSritage,  qui  en  est  fob- 
Jet}  And  he  asserts  the  general  principle,  that  all 
things  which  have  a  real  or  fictitious  situation,  are  sub- 
ject to  the  law  of  the  place  where  they  are  situate,  or 
are  supposed  to  be  situate.  Toutcs  ces  choses,  qui  out 
une  situation  reelle,  oufeinte,  sont  siijettes  a  la  loi  ou  cou- 
tume  dii  lieu,  on  elks  sont  situees,  ou  censSes  d'etre.^  This 
also  is  the  doctrine  maintained  by  Rodenburg  and  Boul- 
lenois.^  Merlin,  in  a  general  view,  assents  to  it.'^  Po- 
thier  further  states  in  relation  to  debts,  which  are  but 
Jus  ad  rem,  that  they  follow  the  nature  of  the  thing 
which  is  the  object  of  the  contract,  according  to  the 
maxim :  Actio  mobilis  est  mobilis  ;  actio  ad  immobile  est 
immobilis.  Hence,  a  debt  due  for  money,  or  for  any 
movable  thing,  belongs  to  the  class  of  movable  proper- 
ty.    So,  also,  does  a  contract  to  do,  or  not  to  do,  any 


'  Pothier,  Coutum.  d'Orleans,  cli.  1,  ^  2,  n.  23,  24  ;  Id.  ch.  3,  n,  51  ; 
Id.  Trait6  des  Choses,  l^  3  ;  post,  ^  382. 

2  Pothier,  Coutum.  d'Orleans,  ch.  1,  ^  2,  n.  24  ;  Id.  ch.  3,  n.  51  ;  Id. 
Traite  des  Choses,  ^  3. 

3  1  Boullenois,  Prin.  G^n.  34,  35,  36,  p.  8,  9  ;  Id.  Obs.  5,  p.  121,  129  ; 
Id.  p.  223,  224,  225  ;  Id.  Obs.  20,  p.  374,  381,  488  ;  2  Boullenois,  Obs. 
46,  p.  472  ;  Piodenburg,  De  Div.  Stat.  tit.  2,  ch.  2,  n.  2,  p.  15  ;  Henry  on 
Foreign  Law,  14,  note;  Id.  15.  —  Cochin  lays  down  the  following  doc- 
trine: "  Les  formalites,  dont  un  acte  doit  eire  rev^tu,  se  reglent  par  la 
loi,  qui  exerce  son  empire  dans  le  lieu,  ou  Tacte  a  ete  pass6  ;  mais,  quand 
il  s'agit  d'appliquer  les  clauses,  qu'il  renferme,  aux  biens  des  parties  con- 
tractanles,  c'est  le  lieu  de  la  situation  de  ses  biens,  qui  doit  seule  etre  con- 
sultte."  And  he  illustrates  by  reference  lo  a  donation,  in  Paris,  of  pro- 
perty situate  in  places  where  donations  inter  vivos  are  prohibited,  holding 
that  such  donations,  alihough  clothed  with  all  the  proper  Parisian  formali- 
ties, are  nuUiiies.  He  then  adds,  "  Ce  n'est  done  pas  la  loi  du  lieu,  ou 
I'acte  a  6ie  pasb6.  qui  en  di'-iermine  refTet."  Cochin,  CEuvres,  Tom.  5, 
p.  697.     See  also  1  Boullenois,  Prin.  Gen.  31,  p.  8. 

*  Merlin,  Repertoire,  Meubles,  ^  5  ;  Id.  Biens,  ^2,  n.  2:  Id.  Loi.  ^  6, 
n.  3. 


CH.  VIIT.]  FOREIGN   CONTRACTS.  613 

particular  thing.  He  admits  that  the  same  rule  ap- 
plies, even  when  it  is  accompanied  by  an  hypothecation 
of  immovable  property  therefor.  So  that,  when  a  debt 
is  executed,  and  an  hypothecation  is  made  of  immova- 
ble property,  as  collateral  security,  the  debt  is  still  to 
be  deemed  a  movable  debt,  although  the  hypothecation 
might,  'per  se,  be  an  immovable  debt ;  because  the  debt 
is  the  principal,  and  the  hypothecation  the  accessory ; 
and,  Accessoriwn  scquitw  natiuwn  pincipalk}  But  he 
insists,  that  contracts  which  have  for  their  objects  any 
inheritable  property,  or  other  immovable,  are  to  be 
deemed  immovable  property ;  such  as,  for  instance,  in 
the  case  of  a  contract  for  the  purchase  of  real  estate, 
the  right  of  the  vendee  against  the  vendor  for  the  de- 
livery of  the  same.^ 

§  371  a.  D'Argentre  says :  Whenever  the  question 
respects  immovables  or  inheritances,  situate  in  different 
places,  where  there  are  different  modes  of  acquiring, 
transferring,  and  asserting  ownership,  and  the  question 
is,  by  what  law  they  are  to  be  governed,  the  most  cer- 
tain rule  in  use  is,  that  the  law  of  the  place  where  the 
property  is  situate  is  for  the  most  part  to  be  observed, 
and  its  laws,  statutes,  and  customs  to  be  observed.  He 
adds,  that  this  rule  prevails  in  contracts,  in  testaments, 
and  in  commercial  matters.  Cum  de  rchis  soli,  id  est 
immohilihis  agitiir,  (quils  cqjjwiknt  d'heriiaf/c,)  et  divcrsa 
diversaritm  possessioniim  loca  et  situs  propominttir,  in  ac- 
qiiirendis,  transferendis,  aut  asserendis  dominiis,  et  in  con- 
troversia  est,  quo  jure  regantur,  certissima   tisu   ohscrvatio 


1  Pothier,  Coutum.  d'0rl6ans,  ch.  1,  ^  2,  n.  24  ;  Id.  n.  50. 

~  Pothier,  Coutum.  d'Orleans,  ch.  3,  art.  2,  n.  50,  n.  51  ;  Id.  Trait6 
des  Choses,  ^  2.  See  Merlin,  Repertoire,  Biens,  ^  1,  n.  13,  ^  2,  n.  \  ; 
Id.  Meubles,  ^  2,  3  ;  Liverm.  Diss.  p.  162,  163. 

CONFL,  52 


614  CONFLICT    OF   LAAYS.  [CH.    VIII. 

est,  id  jus  de  pliirihiis  spedari,  quod  loci  est,  et  siias  cuique 
loco  leges,  statuta,  et  consiietudines  servandas,  et  cp.d  cuique 
mores  de  rebus,  territorio,  et  potestatis  finihus  sint  recepti, 
sic  id  de  talibus  nidla  cujiisqiiam  potestas  sit  prceter  terri- 
tori  legem.  Sic  in  contractihus,  sic  in  testamentis,  sic  in 
commerciis  omnibus,  et  locis  conveniendi  constitidum  ;  ne 
contra  situs  legem  in  immobilibiis,  qiddqumn  decerni  privcdo 
consensu,  et  imr  est  sic  judiciari} 

§  371  b.  Christinseus  adopts  the  very  language  of 
D'Argentre  with  seeming  approbation  ;  ^  although  there 
are  other  passages,  in  which  he  seenns  to  admit  that  a 
different  rule  prevails  in  respect  to  the  acts  which  are 
done  by  a  party,  which  are  to  be  governed  by  the  Lex 
hci  actus.  At  least  he  cites  without  disapprobation  the 
doctrine  of  Baldus,  (who  certainly  contradicts  himself 
in  the  passages  cited,)  that  in  the  solemnities  of  testa- 
ments, the  law  of  the  place  where  the  testament  is 
made,  is  to  govern,  even  although  the  property  is  situ- 
ate elsewhere.^  However,  he  admits  that  in  Belgium, 
by  an  express  edict,  the  law  of  the  situs  in  such  cases 
prevails."* 

§  371  c.  John  Voet  has  expressed  a  very  different 
opinion.  He  holds  that  it  is  sufficient  in  all  cases, 
whether  the  contract  respects  movable  property  or  im- 
movable property,  to  follow  the  law  of  the  place  where 
the  contract  is  made,  and  the  act  done,  whether  it  be  a 
contract  or  a  will.     Neque  minus  de  statidis  mixtis,  actus 


'  D'Argent.  ad  Boit.  Leg.  Les.  Donat.  Art.  218,  Gloss.  6,  n.  3,  1  vol. 
p.  637;   post,  '5>438. 

2  Christinaeus,  Tom.   2,   Decis.  3,  n.  1,2;  Id.  Decis.  4,  n.  1,  4,  5,  6, 
p.  4,  5,  6. 

3  Id.  Decis.  n.  7. 

4  Id.  Decis.  4,  n.  1,  2,  3,  p.  6. 


CII.  VIII.]-  FOREIGN    CONTRACTS.  615 

cujiisqm  solemnia  7'espicientihuSj  percrehuit,  insuper  haUtis 
de  summo  cujusqiie  jure  ac  potestate  ratiociniis,  ad  validi- 
tatcm  actus  cujusqiie  adhihitiouem  solemnitatum,  quas  lex 
loci,  in  quo  actus  geritur,  ptrmscripserit  ohscrvandas  ;  sic  id 
quod  ita  gcstum  fuerit,  sese  porrigat  ad  hona  mohilia  et  im- 
moUlia,  id)icunqiie  sita  aliis  in  tenitoriis,  quorum  leges  hngh 
alium,  longeque  pleniorem  rcqidrunt  solemnium  interventum} 
He  assigns  as  the  principal  reason,  that  otherwise,  from 
ignorance  or  want  of  skill,  it  would  be  almost  impossi- 
ble for  a  man  who  possessed  real  property,  to  make  a 
valid  disposition  thereof  by  an.  act  inter  vivos,  or  by 
testament.^  He  adds,  that  this  rule  prevails  in  Belgi- 
um, in  Spain,  in  Germany,  and  in  France.^ 


1  J.  Voet,  ad  Pand.  Lib.  1,  tit.  4,  P^  2,  ^  13,  p.  45. 

2  Ibid. 

3  Ibid,  citing  authorities.  His  language  is  :  "  Quod  ita  placuisse  vide- 
tur,  turn,  ne  in  infinitum  prope  mulliplicarentur  et  testamenta  et  contrac- 
tus, pro  numero  regionum,  diverso  jure  circa  solennia  utentium  ;  atque 
ita  summis  implicarentur  molestiis,  ambagibus,  ac  difficultatibus,  quotquot 
actum,  res  plures  pluribus  in  locis  sitas  concernentem,  expedire  voluerint : 
tum  etiam,  ne  plurima  bona  fide  gesta  nimis  facile  ac  prope  sine  culpa  ge- 
rentis  conturbarentur.  Tum  quia  ne  ipsis  quidem  in  juris  praxi  versatis- 
simis,  multoque  minus  aliis  simplicitate  desidiaque  laborantibus,  ac  juris 
scientiam  baud  professis,  satis  compertum  est,  ac  vix  per  industriam  ex- 
quisilissimam  esse  potest,  quaj  in  unoquoque  loco  requisita  sint  actuum 
solennia,  quid  indies  in  hac  vel  ilia  regione  novis  legibus  circa  solennium 
observantiam  mutetur  :  ut  proinde,  qu^e  ratio  de  militari  testamento  obti- 
nuet  Quiritium  jure,  milites  nempe  solennibus  paganorum  non  fuisse  ad- 
stringendos,  dum  in  castris  et  expeditione  occupati  erant,  quia  et  juris  im- 
periti  erant,  et  peritiores  consulere  in  castris  non  poterant,  etiam  nunc 
suadeat,  ilium,  qui  actum  gerit,  ad  alterius  loci,  quam  in  quo  gerit,  solen- 
nia non  esse  obligandum ;  quia  et  probabiliter  aliorura  locorum  solennia 
ignorare  potest,  et  in  loco,  in  quo  actum  gerit,  peritiores  morum  aliens 
regionis  non  satis  consulere  ;  dum  ita  fere  comparatum  est,  ut  pragmatici, 
quibus  auctoribus  contractus  celebrantur,  aut  conduntur  testamenta,  vesati 
quidem  plerumque  satis  sint  in  jure  patrio,  non  item  locorum  omnium  et 
universi  orbis  jure  ;  atque  insuper  non  raro  mors  ad  inquisitioncm  anxiam 
adhibendam  impatiens  est,  quod  geritur  negotium.  Quamvis  ergo  in  Fri- 
sia.  septem  testes  in  testamento  requiri  constet,  alibi  fere  tabellionis  testi 


616  CONFLICT    OF   LAWS.  {CH.  VIII. 

§  371  d.  Paul  Voet  holds  a  similar  opinion  ;  and 
puts  several  cases  to  illustrate  it.  If  a  testator  in  the 
place  of  his  domicil  makes  a  will  according  to  the  law 
of  the  place  rei  sitce,  but  not  according  to  the  law  of 
the  place  of  his  domicil,  he  asks  the  question,  whether 
such  a  will  is  good,  as  to  property  situate  elsewhere ; 
and  he  answers  in  the  negative.  He  next  puts  the  case 
of  a  testator,  who  makes  his  will  according  to  the  law 
of  his  place  of  domicil,  as  for  example,  before  a  notary 
and  two  witnesses ;  and  asks,  whether  the  will  has  effect 
upon  property  situate  in  another  country,  where  more 
and  other  solemnities  are  required  ;  and  he  answers  in 
the  affirmative.  He  then  asks,  if  a  foreigner  makes 
his  will  according  to  the  law  of  the  place,  where  he  is 
merely  lodging  or  commorant,  whether  the  will  is  valid 
elsewhere,  where  he  either  has  immovable  property,  or 
he  has  his  domicil ;  and  he  answers  in  the  affirmative. 
The  only  exception  he  makes  is,  where  the  testator,  in 
order  to  evade  the  law,  or  in  fraud  of  the  law  of  his  own 
domicil,  goes  into  another  country,  and  there  makes 
his  will.'' 

§  371  e.  Hertius,  as  we  have  seen,^  lays  down  the 
rule,  that  as  to  the  forms  and  solemnities  of  acts  and 
contracts,  they  are  to  be  governed  altogether  by  the 
law  of  the  place,  where  the  acts  are  done,  and  con- 


umque  duorum  prssentia  ac  fides  sufRciat,  aut  saltern  in  universum  longe 
minor  solennilas  desidcretur  ;  tamen  Ecquitate  rei  motus  Frisia;  Senatus 
ratam  habuit  de  bonis  Frisicis  dispositionem,  Sylvaeducis  coram  parocho 
duobusque  testibus  declaratam,  juxta  Sylvae  ducensis  regionis  usum.  Et 
ita  in  praxi  ha;c  Belgis,  Gcrmanis,  Ilispanis,  Gallis,  aliisquo  placuisse, 
auctores  cujusque  gentis  testantur. 

i  P.  Voet,  de  Statut.  ^  9,  ch.  2,  n.  1,  2,  3,  4,  p.  261,  262,  edit.  1715 ; 
Id.  p.  317,  318,  319,  edit.  1661. 

2  Ante,  ^  260. 


CH.  VIII.]  FOREIGN    CONTRACTS.  617 

tracts  made,  and  not  by  the  law  of  the  domicil  of  the 
party,  or  the  law  of  the  situs  rei  /SV  lex  actui  formam 
dat,  insjnciendum  est  locus  actus,  non  domicilii,  non  rei  sitce  ; 
id  est,  si  de  solennibus  qucendur,  si  de  loco,  do  tempore,  de 
modo  actus,  ejus  loci  hahenda  est  ratio,  uhi  actus  vcl  nego- 
tium  celehratur}  He  adds  ;  Ilegula  hccc  apud  omnes, 
(piardum  quideni  sciam,  est  induhitata ;  and  then  says ; 
Valet  eiiamsi  lona  in  alio  tcrritorio  sint  sita? 

§  372.  Burgundus  apparently  admits,  that  generally 
the  law  of  the  place  of  the  contract  ought  in  all  cases 
to  prevail,  so  far  as  respects  its  form,  its  ceremonies, 
and  its  obligation.  The  passage  already  cited  ^  is  to 
this  effect.  In  scriptura  instrumenti,  in  solemnitatihus,  et 
ceremoniis,  et  generaliter  in  omnibus,  quw  ad  formam  ejusque 
perfectionem  pertinent,  spectanda  est  consuetudo  regionis,  uhi 
fit  ncgotiatio.  Igitur,  ut  paucis  ahsolvam,  quoties  de  vinculo 
ohligationis  vel  de  ejus  inter pretatione  vel  interpretatione 
quwritur,  veliiti  quos,  et  in  quantum  ohliget,  cpdd  sententice 
stipidationem  inesse,  quid  abesse  credi  oporteat,  ^^c,  nt  id 
sequamur,  quod  in  regione,  in  qua  actum  est,frccpientatur^ 
But  he  immediately  adds,  that  if  we  would  know, 
whether  the  contract  was  valid  or  not  in  respect  to  the 
subject-matter  thereof,  we  must  look  to  the  law  of  the 
situs.  Cceterum,  ut  sciamus,  contractus  ex  parte  matericB 
utilis  sit  vcl  inuiilis,  ad  leges,  qucB  rebus,  de  quibus  tractatur, 
impresscB  sunt,  hoc  est,  ad  consuetudincm  situs,  respiciemus.^ 


1  Hertii,  Opera,  De  Collis.  Leg.  §  4,  n.  10,  p.  126,  edit.  1737  ;  Id. 
p.  179,  180  ;  ante,  ^  238. 

2  Ibid. 

3  Ante,  ^  300  a. 

4  Burgundus,  Tract,  4,  n.  7,  8,  p.  104. 

5  Burgundus,  Tract.  4,  n.  8,  9,  p.  107,  108;  2  Boullenois,  Observ.  46, 
p.  450  to  p.  454.  See  J.  Voet,  ad  Pand.  Lib.  1,  tit.  4,  P^-  2,  ^  12,  13, 
p.  45  ;  post,  ^  433. 


(318  CONFLICT    OF  LAWS.  [CH.  VIIL 

He  also  expresses  surprise,  that  authors,  in  considering 
contracts,  should  have  excluded  altogether  the  nature 
of  the  thing  contracted  for,  and'  generally  to  have  in- 
terpreted contracts  according  to  the  law  of  the  place, 
where  they  are  made  ;  for  in  sales,  and  also  in  letting 
to  hire,  and  in  other  contracts,  it  becomes  us  to  look  to 
the  usage  touching  the  subject-matter.  Qidppe  non 
solum  in  emptione  oUinet,  id  ad  consiietudinem  rei  spectare 
deceat,  sed  in  locationc  prwterea,  en  condiidione,  ceterisque 
contractihis}  It  must  be  confessed,  that  on  this  subject 
the  distinctions  and  doctrines  of  Burgundus  are  open  to 
much  question, 

§  372  a.   Dumoulin  says,    that   it   is   the    general 

opinion  of  jurists,  that,  wherever  the  custom  or  law  of 

a  place  prescribes  the  solemnities  or  form  of  an  act,  it 

binds  foreigners,  who  there  do  the  act ;  and  the  act  is 

.valid    and   efficacious    even   in  respect  to   immovable 

.  property,  beyond  the  territory  of  the  custom  or  law. 

Et  est  omnium  Dodonim  scntentia,  ubicmique  consuetudoy 

vel  stcdutum  locale,  disponet  de  solemnitate,  vel forma  actus, 

ligari  ctiam  exteros,  ihi  actum  ilium  gerentes,  et  gestum  esse 

validum,  et  efficacem,  iibique  etiam  super  bonis  solis  extra 

territorium   consuetudinis  vel  staiuti?"      Gaill   adopts   an 

equally  broad  conclusion.      Contractus  enim,  celebratus 

cum  solemnitate  requisiia  in  loco  contractus,  extendit  se  ad 

omnia   bona,   licet  in  loco  bonorum  major  solemnibus  re- 

quireretur? 

§  372  i.  Rodenburg,  as  we  shall  presently  see,  goes 
the  full  length  of  this  doctrine,  and  applies  it  even  to 


1  Burgundus,   Tract.  4,  n.  9  ;    Id.   n.   7;    ante,  ^  302  ;  post,  ^  433  to 
^38. 

2  Dumoulin,  Consil.  53,  Tom.  2,  ^  9,  p.  965  ;  post,  441.    ' 

3  Gaill,  Pract.  Observ.  123,  n.  2,  p.  548. 


CH.  VIII.]  FOREIGN    CONTRACTS.  619 

the  cases  of  wills  and  testaments,  which,  he  says,  if 
made  according  to  the  law  of  the  place  where  they  are 
executed,  are  valid  even  upon  property  situate  else- 
where.^'  There  are  many  other  jurists  who  maintain 
the  same  opinion  both  as  to  contracts  and  other  instru- 
ments, and  as  to  wills  and  testaments.^ 


1  Rodenburg,  de  Div.  Statut.  tit.  2,  ch.  3,  n.  1  ;  2  Boullenois,  Appx. 
p.  19;  post,  ^  475. 

2  Many  of  them  are  enumerated  in  1  Boullenois,  Observ.  23,  p.  491  to 
p.  516  ;  ante,  ^  301.  —  Mr.  FcbHx  also  has  given  us  a  long  list  of  jurists, 
who  hold  the  doctrine.  Indeed,  he  thinks  the  doctrine  firmly  and  gene- 
rally established.  His  language  is;  Un  principe  aujourd'hui  generale- 
ment  adopt6  par  I'usage  des  nations,  c'est  que  'la  forme  des  actes  est 
regime  par  les  lois  du  lieu  dans  lequel  ils  sont  faits  ou  passtis.'  C'est-a- 
dire  que,  pour  la  validit6  de  tout  acte,  il  sulBt  d'observer  les  formalit6s 
prescrites  par  la  loi  du  lieu  ou  cet  acte  a  et6  dress6  ou  r^dige  ;  I'acte  ainsi 
passe  exerce  ses  elTets  sur  les  biens  meubles  et  immeubles  situ^s  dans 
un  autre  territoire,  dont  les  lois  etablissent  des  formalit6s  differentes  et 
plus  etendues  (Locus  regit  actum.)  En  d'autres  termes,  les  lois,  qui  reg- 
lent  la  forme  des  actes,  etendent  leur  autorit6  tant  sur  les  nationaux  que 
sur  les  Strangers,  qui  contractent  ou  disposent  dans  le  pays,  et  elles  par- 
ticipent  ainsi  de  la  nature  des  lois  r^elles.  Le  droit  Romain  ne  contient 
aucune  disposition  qui  consacrat  le  principe  :  locus  regit  actum.  Dans 
lesquelles  on  a  pr6tendu  trouver  cette  regie,  ne  parlent  point  de  la  forme, 
mais  de  la  mati^re  des  contrats.  D^s  le  temps  des  glossateurs,  la  ques- 
tion s'est  presentee  par  rapport  aux  testaments.  Bartole  a  adopt6  I'affir- 
mative  :  Albert  de  Rosate  s'est  prononc6  pour  la  negative,  sur  le  motif 
que  la  loi  n'oblige  que  les  subjets,  et  que  ceux-ci  seuls  ont  le  droit  d'em- 
ployer  une  forme  prescrite.  Plus  tard,  Cujas  a  soutenu,  qu'il  faut  suivre 
la  loi  du  domicile  du  testateur  :  Fachin^e  exigeait  I'accomplissement  des 
formalit^s  prescrites  dans  le  lieu  de  la  situation  des  biens  :  Burgundus, 
tout  en  admettant  la  regie  relativement  aux  contrats,  la  rejette  quant  aux 
testaments ;  il  regarde  comme  affectant  la  chose  et  comme  lois  reelles  les 
solennites  prescrites  pour  les  testaments,  en  invoquant  I'edit  de  IGll  (pour 
les  Pays-Bas,)  art.  12.  Choppin,  au  contraire,  soutient  que  le  testament 
fait  en  pays  etranger,  d'apres  les  formes  prescrites  dans  le  lieu  de  la 
confection,  doit  sortir  ses  effets,  m6me  a  regard  des  immeubles  situes 
dans  un  autre  lieu,  et  il  rapports  un  arret  du  parlement  de  Paris,  rendu 
en  ce  sens.  Dumoulin,  Mynsinger,  et  Gaill,  professent  la  mt-me  doctrine. 
Ces  deux  derniers  auteurs  attestent  la  jurisprudence  constante  de  la 
chambre  imperials   (Reichskammergericht)   en  ce  sens.     Mevius,  en  ad- 


620  CONFLICT    OF    LAWS.  [CH.  TIIL 

§  372  c.    Boullenois  seems   to  have   labored  under 
no  small  embarrassment  as  to  the  question,  whether  a 


mettant  aussi  la  r^gle  g6nerale,  fait  remarquer  que  la  coutume  de  Lubeck 
ne  la  reconnait  que  sous  les  trois  conditions  suivantes  :  V  lualadie  qui  met 
le  testateur  en  danger  de  mortt ;  2°  deces  r6el  en  paj's  Stranger  ;  3°  ab- 
sence de  toute  intention  de  prejudicier  aux  h^ritiers  naturels.  Rodenburg 
et  Voet,  en  adoptant  la  regie  par  rapportaux  contrats  comme  aux  testa- 
ments, la  motivent  sur  les  raisons  suivantes  :  1°  n^cessite  d'^viter  aux  in- 
dividus  possedant  des  biens  dans  difFerents  pays,  I'embarras  et  la  difficult^ 
de  r6diger  aiUant  de  testaments  ou  de  contrats  qu'il  y  a  d'immeubles 
situ6s  sous  I'empire  de  lois  differentes,  ou  de  remplir  dans  un  m6me  tes- 
tament ou  contrat  toutes  les  solennites  prescrites  dans  les  divers  lieux  de 
la  situation  des  biens  ;  2°  impossibiliie  dans  laquelle  I'individu  supris  a 
I'etranger  par  une  maladie  mortelle  peut  se  trouver  de  remplir  les  solen- 
nites prescrites  dans  le  pays  de  son  domicile  ou  de  la  situation  de  ses 
biens  ;  3°  necessity  d'empecher  que  les  actes  faits  de  bonne  foi  soient  an- 
null6s  trop  facilement  sans  la  faute  de  la  partie  ;  4°  impossibilite  pour  la 
majeure  partie  des  hommes  de  connailreles  formes  prescrites  dans  chaque 
localite  ;  5°  enfin,  Voet  ajoute,  qu'il  faut  applicuer  ici  les  motifs,  qui,  chez 
les  Romains,  ont  fait  introduire  la  forme  simple  du  testament  militaire. 
En  terminant,  cet  auteur  cite  presque  tous  ses  devanciers  indiques  ci-des- 
sus,  en  declarant  que  I'opinion  profess6e  par  lui  a  6t6  reconnue  par  la 
jurisprudence  dans  les  Pays-Bas,  en  Allemagne,  en  Espagne,  eten  France, 
Tel  est  aussi  le  sentiment  de  Zoesius,  Grotius,  Christin,  Paul  Voet,  Vin- 
nius,  Jean  de  Sande,  Vander  Kessel,  Vasquez,  Perez,  Cochin,  Boullenois, 
Menochius,  Carpzov,  Huber,  Hert,  Hommel,  Gluck,  Thibaut,  Dauz,  We- 
ber, Mansord,  Muhlenbruch,  Mittermaier,  Tittman,  Merlin,  Meier,  Par- 
dessus.  Story,  Rocco,  Hattogh,  et  Burge."  Fcelix,  Conflit  des  Lois 
Revue  Elrang.  et  Franc.  1840,  Tom.  7,  ^  40  to  ^  42,  p.  346  to  350.  Mr. 
Fcelix,  has,  however,  subsequently  qualified  the  general  doctrine  here 
stated  by  the  following  exceptions.  "  L'acte  fait  d'apres  les  formes 
prescrites  par  la  loi  du  lieu  de  sa  redaction  est  valable,  non  seulement  par 
rapport  aux  biens  meubles  appartenant  a  I'individu  et  qui  se  trouvent  au 
lieu  de  son  domicile,  mais  encore  par  rapport  aux  immeubles,  en  quelque 
endroit  qu'ils  fussent  situes.  Cette  derniere  proposition,  selon  la  nature 
des  choses,  admet  une  exception,  dans  le  cas  ou  la  loi  du  lieu  de  la  situa- 
tion present,  a  l'6gard  des  actes  translatifs  de  la  propriet6  des  immeubles, 
ou  qui  y  affectent  des  charges  reelles,  des  formes  pariiculieres,  qui  ne 
peuvent  dtre  remplies  ailleurs  que  dans  ce  meme  lieu  :  telles  sont  la  re- 
daction des  actes  par  un  notaire  du  mfeme  territoire,  la  transcription  ou 
I'inscription  aux  registres  tenus  dans  ce  territoire,  des  actes  d'ali^nation, 
d'hypotheque,  etc,  L'acte  fait  dans  un  pays  etranger  suivant  les  formes 
qui  y  sont  prescrites,  ne  perd  pas  sa  force,  quant  a  sa  forme,  par  le  retour 


CH.  VIII.]  FOREIGN    CONTRACTS.  621 

contract  was  obligatory  or  not,  merely   by  pursuing 
forms  or  solemnities  prescribed  by  the  law  of  the  place, 


de  I'individu  au  lieu  de  son  domicile  ;  aucune  raison  de  droit  ne  milite  en 
faveur  de  I'opinion  contraire.  La  r^gle,  locus  regit  actum,  ne  droit  pas 
filre  ^tendue  au  dela  des  limites,  que  nous  lui  avons  tracees  au  n°  40 ;  elle 
ne  s'applique  qu'a  la  forme  exterieure,  et  non  pas  k  la  matiere  ou  sub- 
stance des  actes,  ainsi  que  nous  I'cxpliquerons  encore  au  ^  suivant. 
Ainsi,  dans  un  testament,  la  capacite  de  la  personne  et  la  disponibilit6 
des  biens  ne  se  reglent  point  par  la  loi  du  lieu  de  la  redaction.  Dans  les 
dispositions  entrevifs,  soit  a.  titreon6-reux,  soit^  titre  gratuit,  la  loi  du  lieu 
de  la  redaction  peut  avoir  influ6,  soit  sur  I'ensemble  de  I'acte,  soit  sur  les 
termes  employes  par  les  parties  ;  et,  sous  ce  double  titre,  cette  loi  peut  etre 
consultee  par  les  juges  comnie  moyen  d'interpr6tation  ;  mais  elle  ne  forme 
pas  la  loi  decisive,  a  moinsque  les  parties  ne  s'y  soient  soumises  express6- 
ment."  He  afterwards  adds  ;  "  La  r^gle  d'apres.laquelle  la  loi  du  lieu  de 
la  redaction  regit  la  forme  de  I'acte,  admet  differentes  exceptions,  dontvoici 
les  principales  :  1°  Lorsque  les  contractants  ou  I'individu  dont  6mane  une 
disposition  se  sont  rendus  en  pays  etranger  dans  I'intention  d'^luder  une 
prohibition  port^e  par  la  loi  de  leur  domicile  ;  car  la  fraude  fait  exception  a 
toutes  les  regies  ;  2°  Lorsque  la  loi  de  la  patrie  defend  express^ment  de 
contracter  ou  de  disposer  hors  du  territoire  et  avec  des  formes  autres 
que  celles  prescrites  par  cette  meme  loi  ;  car  alors  l'id6e  d'un  consente- 
ment  tacite  de  cette  nation  se  trouve  formellement  exclue.  Cette  ex- 
ception est  la  meme  que  celle  indiqu6e  par  M.  Eichhorn,  sous  le  n°2; 
3°  En  cas  d'opposition  expresse  du  statut  reel  Voy.  supra,  n°  43  ; 
Lorsque  la  loi  du  lieu  de  la  redaction  attache  a  la  forme  qu'elle  pre- 
scrit  un  effet,  qui  se  trouve  en  opposition  avec  le  droit  public  du  pays 
ou  I'acte  est  destin6  a  recevoir  son  execution  ;  5°  Par  rapport  aux  am- 
bassadeurs  ou  ministres  publics  et  a  leur  suite.  Ces  personnes  ne  sont 
pas  soumises  aux  lois  de  la  nation  pres  de  laquelle  elles  exercent  leur 
mission  diplomatique."  And  he  finally  sums  up  thus  ;  "  Une  autre 
question  est  celle  de  savoir,  si  le  contractant  ou  disposant,  que  se  trouve 
en  pays  Stranger,  peut  se  borner  a  employer  les  formes  prescrites  par  la 
loi  du  lieu  de  la  situation  de  ses  immeubles,  au  lieu  de  suivre  celle  du 
lieu  de  la  redaction.  Nous  tenons  pour  I'afSrmative,  par  une  raison 
analogue  a  celle  donn^e  sur  la  question  prdcedente.  Le  statut  reel  regit 
les  immeubles  ;  c'est  un  principe  resultant  de  la  nature  des  clioses  ;  la 
permission  d'user  des  ftrmes  etablies  par  la  loi  du  lieu  de  la  redaction  de 
I'acte  n'est  qu'une  exception  introduite  en  faveur  du  proprietaire,  et  a 
laquelle  il  lui  est  loisible  de  renoncer.  Tel  est  aussi  le  sentiment  de  Ro- 
denburg,  de  Jean  Voet,  et  de  Vander  Kessel  ;  Coccii  soulicnt  meme  que 
la  forme  des  actes  entre  vifs  ou  testamentaires  est  regie  exclusivement  par 
la  loi  de  la  situation  des  biens.     Fachinee  et  Burgundus  (V.  supra,  n°.  41) 


622  CONFLICT    OF   LAWS.  [CH.  VIIL 

where  it  is  made.     He  puts  the  case  of  two  persons  con- 
tracting, who  are  domiciled  in  one  place,  and  contract 


partageaient  cet  avis,  mais  par  rapport  aux  testaments  seulement.  En 
Belgique,  I'edit  perp6tuel  de  1611,  art  13,  ordonnait,  qu'en  cas  de  diver- 
site  de  coutume  au  lieu  de  la  residence  du  testateur  et  au  lieude  la.  situation 
de  ses  biens,  on  suivrait  par  rapport  a  la  forme  et  a  la  solennit6,  la  cou- 
tume de  la  situation.  Paul  Voet,  Huber,  Hert,  Hommel  et  I'auteur  de 
I'ancien  repertoire  de  jurisprudence,  seprononcent  pour  la  nullil6  ;  ce  der- 
nier invoque  I'autorite  de  Paul  de  Castres,  au  passage  rapporte  au  n°  pr6- 
c6dent,  et  le  principe  que  la  loi  lie  tous  les  individus,  qui  vivent  dans  son 
ressort,  ne  fut-ce  que  moraentanement.  Nous  renvoyons  a  ce  sujet  aux 
observations  presentees  sur  la  question  pr^cedente.  Mevius  distingue 
entre  le  citoyen  faisant  partie  de  la  nation  dans  le  territoire  de  laquelle  les 
biens  sont  situes,  et  entre  I'^tranger  ;  il  n'accorde  qu'au  premier  la  facult6 
de  tester  ou  de  contracter  partoot  d'apres  les  formes  prescrites  au  lieu  de 
la  situation.  L'auteur  ne  donne  pas  de  motif  de  cette  distinction,  et  nous 
ne  pouvons  la  trouver  fondee."  FceHx,  Conflit  des  Lois,  Revue  Etrang. 
et  Franc.  Tom.  7,  1840,  p.  3.52  to  p.  360.  See  also  the  opinions  of  foreign 
jurists  on  the  subject,  2  Burge,  Coram,  on  Col.  and  For.  Law,  Pt.  2,  ch. 
9,  p.  840  to  871.  In  respect  to  some  of  these  he  has  certainly  been  led 
into  an  error;  and  some  speak  so  indeterminately,  that  it  is  difficult  to 
gather  what  their  opinion  is.  It  is  certain  that  Mr.  Foelix  has  misunder- 
stood the  opinion  of  Mr.  Story  in  his  Contlict  of  Laws  (see  ^  364)  ;  and 
also  the  opinion  of  Mr.  Burge.  See  1  Burge,  Comm.  on  Col.  and  For. 
Law,  Pt.  1,  ch.  1,  p.  21  to  p.  24.  His  language  is  :  "  In  examining  all 
contracts,  instruments,  or  dispositions,  whether  they  are  made  inter  vivos, 
or  are  testamentory,  our  attention  may  be  directed  to  four  subjects  ;  the 
first  is,  the  capacity  of  him  who  makes  it ;  the  second  is,  the  property 
which  is  the  subject  or  occasion  of  the  contract  or  instrument ;  the  third 
regards  the  formalities  or  ceremonies  with  which  it  is  made  ;  and  the  fourth 
is  the  judicial  process  by  which  the  rights,  which  it  confers,  are  to  be  en- 
forced. The  capacity  of  the  party  to  make  the  instrument  is  ascertained  by 
consulting  the  law  of  the  place  of  his  domicil  ;  because  it  is  that  law,  and 
that  law  alone,  which  affects  the  person,  and  wiiich  gives  or  denies  him 
the  capacity  or  power  to  make  the  instrument.  With  respect  to  the  pro- 
perty, the  subject  of  the  contract,  disposition,  instrument,  or  testament, 
recourse  is  had  to  the  real  law,  being  that  which  prevails  in  the  place  in 
which  the  property,  if  immovable,  is  actually  sittftited  ;  or  in  which,  if  it 
be  movable  or  personal,  it  is  presumed  to  be  situated  ;  that  is,  in  the  place 
of  the  possessor's  domicil.  When,  however,  it  is  necessary  to  ascertain 
whether  the  contract  be  valid,  what  is  its  true  construction  and  effect,  and 
whether  the  instrument  in  which  it  is  expressed,  or  whether  a  testament 
be  duly  and  formally  made,  recourse  is    had  to   the  law  of  the  place  in 


CH.  VIII.]  FOREIGN    CONTRACTS.  623 

in  another,  and  the  thing,  respecting  which  the  contract 
is  made  being  situate  in  another,  and  asks  what  ought 
to  be  the  form  and  solemnities  necessary  to  make  it  valid. 


which  tlie  contract  is  entered  into,   or  the  instrument  or  testament  was 
made  ;  because,  if  it  be  made  according  to  the  forms  prescribed  by  that  law, 
it  is  valid  everywhere.     '  Autstatutum  loquitur  de  his,  quaj  concernunt  nu- 
dam  ordinationem  velsolemnitatem  actus,  et  semper  inspicitur  statutem,  vel 
consuetudo  loci,  ubi  actus  celebratur,  sive  in  contractibus,  sive  in  judiciis, 
sive  in  testamentis,  sive  in  instrumentis  aut  aliis  conficiendis,  ila  quod  tes- 
tamentum,  factum  coram  duobus  testibus  in  locis,  ubi  non  requiritur  major 
solemnitas,  valet  ubique.'     A  distinction,  however,  must  be  observed  be- 
tween such  solemnities  as  are  purely  formal,  and  those  which  are  of  the 
substance  and  essence  of  the  disposition  or  instrument.     Tliere  are  some 
solemnities  which  intrinsically  atTect  the  disposition  itself,  so  as  to  render 
their  observance  essential  to  its  validity,   whilst  there  are  others  which 
only  extrinsically  regard  them.     An  example  of  the  former  description  of 
solemnities  is  given  by  Stockmans,  in  the  case  of  a  law  which  prohibits 
the  husband  and  wife  from  instituting  the  one  the  heir  of  the  other,  unless 
by  a  will  executed  before  two  notaries.     If  the  party  made  a  will  in  the 
common  form,  in  a  place  where  no  such  law  prevailed,  it  would  be  invalid 
in  respect  of  property  situated  in  the  place  where  it  did  prevail.     Similar 
examples  are  afforded  by  the  English  Statute  of  Frauds,  which  denies  the 
capacity  to  devise  real  property,  otherwise  than  by  a  will  attested  by  three 
or  more  credible  witnesses  ;  and  by  the  law  of  .Jamaica,  which  enables  a 
married  woman  to  convey  her  real  estate,  and  a  tenant  in  tail  to  bar  the 
remainder,  and  acquire  the  fee  by  a  simple  conveyance  ;  but  it  requires  at 
the  same  time,  that  the  married  woman  should  be  examined   apart  from 
her  husband,  and  that  the  conveyance  should  be  acknowledged  and  record- 
ed.    The  following  example  of  that  species  of  solemnity,  which  is  extrin- 
sic to  the  disposition,  is  given  by  Stockmans,  in  the  case  which  has  been 
cited  :  '  Si  quis  incola  dilionis  regiiu  testetur  in  urbe  Leodiensi,  ubi  testa- 
toris  subscriptio  in  testamentis  necessaria  non  est,  sed  sufficit  communis 
ritus,  qui  in  aliis  publicis  instrumentis  requiritur.'     There  may  be  said  to 
be  three  species  of  solemnities  ;  first,  those  which  are  requisite  to  enable 
the  person,  as  for  instance,  the   authority  from  the   husband   to  the  wife, 
essential,  by  the  law  of  some  countries,  to  the  validity  of  her  act.     These 
are  derived  from,  and  must  be  examined  with  reference  to  the  law  of  the 
domicil,  or  the  Lex  loci  rei  sit;o.    Secondly,  those  which  form  a  part  of,  and 
are  essential  to  the  act,  such  as  the  delivery  of  the  subject-matter  of  a  gift. 
The  third  species  of  solemnities  consists  of  those  which  are  designed  to 
establish  the  truth  or  authenticity  of  the  instrument,  such  as  the  proof  by 
two  or  more  notaries,  or  one  notary  and  two  witnesses,  or  the  number,  age, 
and  quality  of  witnesses  required  for  the  validity  of  a  will." 


624  CONFLICT    OF   LAWS.  [CH.  YIIL 

if  in  each  place  they  are  different.  If  it  is  clear  that  the 
forms  appertain  to  the  solemnities  of  the  act,  he  thinks 
that  there  is  no  difficulty  in  affirming,  that  the  law  of  the 
place  of  the  contract  ought  to  govern.  If  the  forms  re- 
late to  the  capacity  of  the  person,  then  the  law  of  the 
place  of  his  domicil  ought  to  govern.  But  if,  on  the  con- 
trary, they  appertain  either  to  the  substantials  of  the  con- 
tract, or  its  nature,  or  its  accidents,  or  its  fulfilment, 
{sive  ad  siibstantialia  contractus,  sive  ad  naturalia,  sive  ad 
accidentalia,  aiit  complementaria,)  there  is  great  difficulty  ; 
and  if  any  general  rule  is  established,  either  to  follow 
the  law  of  the  place  of  the  contract,  or  that  of  the  situs 
of  the  thing,  or  that  of  the  domicil  of  the  contracting 
parties,  a  false  principle  will  be  introduced  ;  for  some- 
times the  formalities  belong  to  the  quality  of  the  person, 
sometimes  to  the  contract,  and  sometimes  to  other  things. 
He,  therefore,  arrives  at  the  conclusion,  that  no  universal 
rule  can  be  laid  down  applicable  to  all  classes  of  cases.* 
In  another  place  Boullenois  remarks,  that  the  French 
authors  {nos  aideurs)  are  generally  of  opinion,  that  the 
law  of  the  place  of  the  contract  is  to  govern.  Locus  con- 
tractus regit  actum?  And  he  then  proceeds  to  lay  down 
certain  rules  on  the  subject,  which  have  been  already 
cited,  as  the  guiding  principles.^  And  among  them  is 
the  very  important  rule,  applicable  to  the  subject  before 
us,  that  where  the  law  requires  certain  formalities  which 
are  attached  to  the  things  themselves,  the  law  of  the 
situs  or  situation  is  to  govern.* 


1  1  Boullenois,  Observ.  23,  p.  464,  465,  466  ;  2  Boullenois,  Observ.  46, 
p.  445. 

2  2  Boullenois,  Observ.  46,  456. 

3  Ante,  i)  240. 

4  2  Boullenois,  Observ.  46,  p.  467  ;  ante,  ^  240, 


CH.  VIII.]  FOREIGN    CONTRACTS.  625 

§  372  d.  Mr.  Burge,  after  suggesting,  that  there  are 
three  species  of  solemnities,  which  he  enumerates, 
adds  ;  "  A  further  distinction  may  be  made  between 
those  solemnities,  which  relate  to  contracts  and  instru- 
ments for  the  transfer  of  real  property,  and  those,  by 
which  it  is  actually  transferred.  With  respect  to  the 
first,  those  are  to  be  followed,  which  prevail  in  the 
place,  where  those  contracts  are  made,  or  those  in- 
struments executed  ;  but  with  regard  to  the  actual 
transfer  of  such  property,  those  are  to  be  observed, 
which  are  prescribed  by  the  law  of  the  place,  where  it 
is  situated.  Thus,  a  contract  to  sell  or  mortgage  real 
property  will  be  valid,  if  the  solemnities  are  observed, 
which  are  required  by  the  law  of  the  place,  where  the 
contract  is  made,  and  will  be  the  foundation  of  a  per- 
sonal action  against  the  party  to  that  contract,  to  com- 
pel the  transport  or  mortgage  of  such  property,  but  no 
transport  or  mortgage  will  be  complete,  nor  will  the 
dominium  in  the  property  have  been  transferred  or  ac- 
quired, unless  those  solemnities  are  observed,  which  are 
required  by  the  law  of  the  place,  where  it  is  situated."  ' 
Again  he  adds  in  another  place ;  "  In  considering  the 
law,  by  which  the  transfer  of  immovable  property  is 
governed,  a  distinction  should  be  made  between  the 
contract  to  transfer,  and  the  actual  transfer  of  the 
dominium.  There  may  be  cases,  in  which  the  law  of  the 
domicil,  or  that  of  the  place  of  the  contract,  will  pre- 
vail, notwithstanding  it  may  be  opposed  to  that  of  the 
situs,  whilst,  in  other  cases,  the  law  of  the  situs  will 
prevent  the  contract  taking  eifect.     Thus,  instances  are 


1   1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  1,  p.  24  ;  2  Burge, 
Comm.  on  Col.  and  For.  Law,  Pi.  2,  ch.  9,  p.  814,  845. 
CONFL.  53 


626  CONFLICT    OF    LAWS.  [CH.  VIIL 

cited  by  jurists,  where  the  Law  of  the  clomicil  incapaci- 
tates the  party  from  contracting ;  but  the  law  of  the 
situs  authorizes  the  alienation  of  his  immovables.  Thus, 
by  the  law  of  Ghent,  persons  were  minors  until  they 
had  attained  the  age  of  twenty-five  years  ;  but  in 
Hainault,  a  person  of  the  age  of  twenty  might  alienate 
his  fief  situated  in  that  country.  An  inhabitant  of 
Ghent  contracts  to  sell  a  fief  in  Hainault,  of  which  he 
was  the  owner.  The  contract,  in  the  opinion  of  Bur- 
gundus,  would  create  no  obligation  on  him  to  complete 
this  alienation.  Ut  j^uta,  civis  Gandensis  cctate  minor, 
tamen  vigesimum  egressiis  annum,  Hannonica  feuda  sine 
'  audoritate  futoris  vendidit ;  procid  duhio  in  ejusmodi  adu 
nihil  agi  existimandum  est,  et  inidilem  omnino  conirahi  ohli- 
gationem  ;  quia  Gandavi,  qui  aliter  emandpati  non  sunt, 
ante  vigesimum  quintiim  annum  rebus  suis  intervenire  ^wo- 
liibentur.  But,  if  the  alienation  were  actually  made, 
the  same  jurist  considers,  that  it  would  be  valid  :  >SV 
tamen  ejusmodi  feudi  mandpationem  fecerit  venditor,  tutum 
esse  emptorem,  et  quod  uctum  erit  valere  quotidianCi  ac- 
dpimus  experientid,  quando  luce  sit  cetas  et  competens,  quce 
in  Hannonicorum  feudorum  alienatione  rcquiritur.  Nee 
enim  consuetudo  Gandensis  potest  tollere  Ubertatem  man- 
dpationis,  qida  res  alienas  legibus  sids  alligare  non  potest ; 
hoc  enim  jus  dicere  extra  territorium.  A  decision  is  re- 
ported by  Stockman,  in  which  the  same  doctrine  was 
held.  T.  being  of  the  age  of  twenty,  and  married,  was 
according  to  the  law  of  his  domicil  so  far  emancipated, 
as  to  be  capable  of  administering,  but  not  of  alienating 
his  estate.  He  alienated  a  property  situated  in  Louvain, 
where  the  effect  of  his  marriage  gave  him  the  full  capa- 
city of  majority.  An  action  was  brought  by  his  heir 
to  recover  back  the  purchase-money,  on  the  ground, 
that  T.  was  incompetent  by  the  law  of  his  domicil  to 


CH.  VIII.]  FOREIGN    CONTRACTS.  627 

alienate  his  property,  and  that  this  law  extended  to, 
and  prevented  the  disposition  by  hiin  of  his  property 
in  Louvain.  But  the  purchaser  insisted,  and  the  Court 
held,  that  the  validity  of  the  alienation  must  be  decided 
according  to  the  law  of  Louvain,  and  dismissed  the 
action.  It  follows  from  this  doctrine,  that  if  the  person, 
competent  by  the  law  of  his  domicil,  should  contract  to 
make  an  alienation  of  property  situated  in  a  country, 
where  he  was  incompetent  to  make  it,  his  contract 
could  not  be  enforced,  although  he  might  be  answerable 
in  damages  to  the  person  with  whom  he  had  contracted. 
On  the  other  hand,  if  he  were  incompetent  by  the  law 
of  his  domicil  to  contract,  but  competent  to  alienate  by 
the  lex  loci  rei  sitm,  and  an  alienation  was  actually  made 
by  him,  it  would  not  be  rescinded  on  the  ground  that 
he  was  incompetent  by  the  law  of  his  domicil  to  con- 
tract. In  the  cases  put  by  Burgundus,  and  reported 
by  Stockman,  it  will  be  perceived,  that  the  alienation 
was  complete.  It  does  not  follow,  that  if  the  vendor 
had  refused  to  perform  his  contract,  the  forum  of  the 
rci  siice  would  have  enforced  it.  The  doctrine  of  Roden- 
burg  is,  that  the  contract  is  a  nullity,  and  that  effect 
cannot  be  given  to  it  in  any  Court  to  compel  its  per- 
formance by  the  delivery  of  the  property.  Wesel,  who 
concurs  with  Bodenburg,  treats  the  delivery  or  manci- 
imtio  as  the  simplex  implementuni  of  the  contract;  and, 
as  it  is  required  for  the  validity  of  a  sale,  that  there 
should  have  been  a  preceding  contract,  he  urges  ;  Ciim 
ergo  totus  venditionis,  contractus  oh  defectum  wtatis  sit  irrituSj 
nee  sit  quod  mancipatione  solenni  impleri  possit^  utiqiie  niida 
simplexque  fundi  mancipatio  omnino  nihil  operattir,  cessante 
causa  ad  mancipandum  idoned."^ 

1  2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  844  to  846 ; 
Id.  p.  867  to  870. 


628  CONFLICT    OF   LAWS.  [CH.  VIIL 

§  372  c.  And,  again,  he  says  ;  "  So,  if  those  solemni- 
ties, which  the  Lex  loci  contractus  requires,  have  been 
observed,  and  the  contract  according  to  that  law  is  valid 
and  obligatory,  it  will  be  valid  everywhere  else.  But 
the  latter  proposition  is  subject  to  the  qualification,  that 
it  does  not  affect  immovable  property,  subject  to  a  law 
in  the  country  of  its  dim,  which  annuls  a  contract, 
because  it  has  not  been  entered  into  with  the  solemni- 
ties which  it  requires.  If  the  disposition  of  the  law 
does  not  annul  the  contract  on  account  of  its  non- 
observance  of  the  solemnities,  which  are  prescribed, 
but  gives  to  it  a  degree  of  authenticity  or  credit,  which 
it  will  want,  if  they  are  not  observed,  or  if,  in  other 
words,  its  effect  is  either  to  dispense  w^ith  a  more  formal 
proof  of  the  instrument,  if  it  bears  on  it  evidence  of 
their  observance,  or  if  in  consequence  of  the  non-ob- 
servance it  attaches  a  presumption  against  the  execution 
of  the  instrument,  and  therefore  requires  from  the  par- 
ties a  greater  burden  of  proof,  such  solemnities  are  to 
be  classed  amongst  the  proofs  in  the  cause,  which  are 
governed  neither  by  the  Lex  loci  contractus,  nor  by  that 
of  the  situs,  but  by  that  of  the  Forum.  This  question, 
in  the  opinion  of  Paul  Voet,  regards  nan  tarn  de  solemni- 
hiis,  quam  prohandi  efficacid  ;  cjucb  licet  in  una  loco  siiffi- 
ciens,  non  tamen  iMque  locormn ;  quod  judex  unius  terri- 
torii  nequeat  vins  trihucre  instrumento,  ut  alibi  quid  opere- 
tur."  ^  There  are  other  jurists  who  maintain  the  same 
distinction.^ 


1  2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  9,  p.  867,  808, 
See  also  3  Burge,  Comm.  Pt.  2,  ch.  20,  p.  751,  752. 

2  P.  Voet,  ad  Statut.  ^4,  ch.  2,  n.  15,  16,  p.  142,  edit.  1661;  Ersk. 
Inst.  B.  3,  tit.  2,  ^  40. —Mr.  Burge  adds  on  this  point  ;  "  When  the 
question  regards  the  property  which  the  law  allows  to  be  alienated,  or  the 
persons  to  whom,  or  the  purposes  for  which  its  alienation  may  be  made,  it 


CH.  VIII.]  FOREIGN    CONTRACTS.  629 

§  372/.  That  there  may  be  some  grouiid  for  such  a 
distmction  as  is  above  stated,  may  well  be  admitted. 
But  that  the  rule  generally  prevails  in  all  nations  may 
well  be  doubted.     Thus,  it  seems  very  clear  that  a  con- 


can  be  determined  only  by  the  law  of  the  situs.  The  Statutes  of  Mort- 
main, the  law  of  death-bed,  the  restriction  of  gifts  inter  conjuges,  are 
strictly  real  laws  to  which  the  parties  to  the  contract  must  conform,  al- 
though no  such  laws  exist  in  the  place  of  their  domicil,  or  in  that  of  the 
contract.  In  these  instances  the  law  of  the  situs  is  prohibitory,  and  im- 
presses on  the  property  a  quality  excluding  it  from  the  alienation.  A 
contract,  therefore,  to  make  such  an  alienation  as  would,  in  any  of  these 
respects,  contravene  the  law  of  the  situs,  would  be  wholly  inefTeclual. 
But  when  the  contract  does  not  expressly,  nor  by  necessary  implication, 
contravene  it,  but  on  the  contrary,  may  be  carried  into  effect  consistently 
with,  or  by  means  of  its  provisions,  although  the  contract  itself  may  not 
give  a  title,  yet  it  will  be  the  foundation  of  an  action  by  the  one  to  compel 
the  other  to  complete  it  in  that  manner,  which  the  law  of  the  situs  requires 
in  order  to  give  him  that  title.  The  observation  of  Du  Moulin,*  in  com- 
menting on  an  article  of  the  Coutume  of  Auvergne,  illustrates  this  distinc- 
tion. By  that  article  all  contracts  or  conventions  respecting  the  succession 
had  the  effect  of  vesting  the  seizin  in  the  person,  in  whose  favor  they 
were  made.  This  great  jurist,  whilst  he  thus  limits  its  operation,  de  praj- 
diis  sitis  sub  hac  consuetudine,  et  non  extra  ejus  territorium,  at  the  same 
time  adds,  Valet  quidem  pactio  ubique,  sed  translatio  possessionis,  qua?  sit 
in  vim  consuetudinis,  non  valet  nisi  intra  ejus  territorium.  The  deed,  by 
which  parties  in  England  convey  an  estate  in  British  Guiana,  has  no  effect 
as  a  transport  of  it,  but  it  operates  as  a  contract  of  transport,  and  enables 
the  purchaser  to  compel  the  vendor  to  complete  the  transport  in  the  man- 
ner prescribed  by  the  law  of  that  settlement.  Erskine  has  thus  stated  the 
doctrine  of  the  law  of  Scotland  on  this  subject.  All  personal  obligations 
or  contracts  entered  into  according  to  the  law  of  the  pl.ice,  where  they  are 
signed,  or  secundum  legem  domicilii,  vel  loci  contractus,  are  deemed  as 
effectual,  when  they  come  to  receive  execution  in  Scotland,  as  if  they  had 
been  perfected  in  the  Scottish  form.  *And  this  holds  even  in  such  obliga- 
tions as  bind  the  grantor  to  convey  subjects  within  Scotland  ;  for  where 
one  becomes  bound  by  a  lawful  obligation,  he  cannot  erase  to  be  bound  by 
changing  places.  An  English  deed,  if  so  executed  in  point  of  form  as 
validly  to  carry  Scots  heritage,  will  be  given  effect  to,  in  regard  to  such 
heritage,  agreeably  to  the  law  of  Scotland,  notwithstanding  the  same  deed 
would,  by  the  English  law,  under  similar  circumstances,  be  unavailable  in 
respect  of  heritage  situate  in  England."  2  Burge,  Comm.  on  Col.  and 
For.  Law,  Tt.  2,  ch.  9,  p.  846  to  p.  848  ;  Id.  p.  8G4,  865. 
53* 


630  CONFLICT    OF   LAWS.  [CH.  VIII. 

tract,  made  in  a  foreign  country,  for  the  sale  of  lands 
situate  in  England,  Scotland,  or  America,  would  not  be 
held  a  binding  contract  in  either  of  those  countries,  to 
be  enforced  in  their  courts  in  personam,  or  in  rem,  unless 
the  contract  was  in  conformity  to  the  forms  prescribed 
by  those  countries.^  At  the  same  time,  it  is  quite  pos- 
sible, that  the  same  contract  might  be  enforced  in  the 
country  where  it  was  made,  if  it  should  conform  to  the 
law  of  that  country  touching  real  property.^  But,  after 
all,  looking  to  the  great  diversity  of  views  of  foreign 
jurists,  there  is  much  reason  to  be  satisfied  with  the  ge- 
neral rule  of  the  common  law  on  this  whole  subject, 
that  is  to  say,  that  in  respect  to  movables,  the  law  of 
the  place  where  the  contract  is  made,  will,  with  few  ex- 
ceptions, be  allowed  to  govern  the  forms  and  solemni- 
ties thereof;^  but  as  to  immovables,  no  contract  is  obli- 
gatory or  binding  unless  the  contract  is  made  with  the 
forms  and  solemnities  required  by  the  local  law  where 
they  are  contracted.     (Lex  situs.y 

§  373.  But,  whatever  may  be  the  true  rule  in  cases 
where  the  law  of  the  sUiis  does  not  prohibit  the  con- 
tract, as,  for  instance,  a  contract  for  the  sale  of  land,  it 
is  very  clear  that,  if  prohibited  there,  it  is  everywhere 
invalid  to  all  intents  and  purposes.  So  the  doctrine  is 
laid  down  by  Rodenburg.  After  remarking  that  if  a 
contract  is  made,  that  the  dotal  rights  shall  be  accord- 
ing to  the  custom  of  another  place  than  that  of  the 
domicil  of  the  husband,  it  will  be  good,  if  there  is  no 
local  law  of  either  place  which  prohibits  it ;  he  adds, 


1  Ante,  ^  363,  364,  365. 

2  Ante,  ^76. 

3  Ante,  \  362,  364;  post,  §  370,  383,  384. 
^  Ante,  \  364  to  ^  367,  ^  382,  383. 


CH.  vjil]  foreign  contracts.  631 

that  the  contrary,  if  the  contract  is  opposed  to  the  local 
law,  is  true  7'ci  sitcc.  Contra,  si  per  leges  loci,  iihi  bona 
constituta  sunt,  Umitetur  illud  rerum  immobiliimi  doariitm, 
^c. ;  eo  quod  nemini  liceat  privatd  cautione  refragari  legi 
puhlicce  ncgcdivcc  end  prohihitorin'}  Boullenois  also  lays 
down  the  same  rule  among  his  general  maxims :  Une 
conveidion,  toide  legitime  qiCelle  soil  en  elle-meme,  n'a  pas 
son  execution  sur  les  liens,  lorsqu'ils  sont  situes  en  coidtimcs 
prohihitives  de  la  convention?  Mr.  Burge  also  lays  down 
among  his  general  principles  the  following  rule.  "  In 
a  conflict  between  a  personal  law  of  the  domicil  and  a 
real  law,  either  of  the  domicil  or  of  any  other  place, 
the  real  law  prevails  over  the  personal  law.  Thus,  a 
person  who  has  attained  his  majority,  has,  as  an  inci- 
dent to  that  status,  ^^  power  of  disposing  by  donation 
inter  vivos  of  every  thing  he  possessed,  may,  by  the  real 
statute  of  the  place  in  which  his  property  is  situated, 
be  restrained  from  giving  the  whole,  or  from  giving  it, 
except  to  particular  persons."  ^ 


1  Rodenburg,  De  Div.  Stat.  tit.  3,  ch.  4,  n.  1,2;  2  Eoullenois,  Obser. 
42,  p.  401,  402 ;  Id.  Appx.  p.  79,  80. 

2  1  Boullenois,  Princ.  G6n.  41,  p.  9,  10;  ante,  ^  262. 

3  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  1,  p.  28,  ^  20  ;  Id. 
p.  26,  §  8,  9.  It  may  be  remarked,  that  some  of  the  general  principles 
laid  down  by  Mr.  Burge  in  the  chapter  here  cited,  wliich  he  says  "  may 
be  adopted,"  admit  of  grave  question,  and  are  not  supported  by  the  com- 
mon law. 


632  CONFLICT    OF   LAWS.  [CH.  IX. 


CHAPTER  IX. 

PERSONAL    PROPERTY. 

§  374.  We  next  come  to  the  consideration  of  the 
operation  of  foreign  law  in  relation  to  personal,  real, 
and  mixed  property,  according  to  the  known  divisions 
of  the  common  law,  or  to  movable  and  immovable  pro- 
perty, according  to  the  known  divisions  of  the  civil 
law  and  continental  jurisprudence.  For  all  the  pur- 
poses of  the  present  commentaries  it  will  be  sufficient 
to  treat  the  subject  under  the  heads  of  personal  or 
movable  property,  and  real  or  immovable  property, 
since  the  class  of  mixed  property  appertains  to  the 
latter.! 

§  375.  We  have  already  had  occasion  to  state,  that 
in  the  civil  law  the  term  Bona  includes  all  sorts  of  pro- 
perty, movable  and  immovable ;  as  the  corresponding 
word  Biens,  in  French,  also  does."  But  there  are  many 
cases  in  which  a  broad  distinction  is  taken  by  foreign 
jurists  between  movable  property  and  immovable  pro- 
perty, as  to  the  operation  of  foreign  law.  We  have 
also  had  occasion  to  explain  the  general  distinction  be- 
tween personal  and  real  laws  respectively,  and  mixed 
laws,  in  the  sense  in  which  the  terms  are  used  in  con- 


1  See  on  the  subject  of  this  cliapter,  3  Biirge,  Comm.  on  Col.  and  For. 
Law,  Pt.  2,  ch.  20,  p.  749  to  p.  780. 

2  See  Liverm.  Dissert,  p.  81,  ^  106  ;  1  Boullcnois,  Observ.  2,  p.  28  ; 
Id.  Observ.  6,  p.  127  ;  Rodenburg,  De  Divers.  Stat.  tit.  1,  ch.  2  ;  2  Boul- 
lenois,  Appx.  p.  6  ;  Merlin,  R6pert.  Biens,  ^  I. 


CH.  IX.]  PERSONAL    PROPERTY.  633 

tinental  jurisprudence ;  personal,  being  those  which 
have  principally  persons  for  their  object,  and  only 
treating  of  property  incidentally ;  real,  being  those 
which  have  principally  property  for  their  object,  and 
speaking  of  persons  only  in  relation  to  property ;  and 
mixed,  being  those  which  concern  both  persons  and 
property.^ 

§  376.  According  to  this  distribution,  all  laws  re- 
specting property,  whether  it  be  movable  or  immovable, 
would  fall  under  the  denomination  of  real  laws  j  and, 
of  course,  upon  the  principles  of  the  leading  foreign 
jurists,  would  seem  to  be  limited  in  their  operation  to 
the  territory  where  the  property  is  situate.^  This,  how- 
ever, is  a  conclusion  which,  upon  a  larger  examination, 
will  be  found  to  be  erroneous,  the  general  doctrine 
held  by  nearly  all  foreign  jurists  being,  that  the  right 
and  disposition  of  movables  is  to  be  governed  by  the 
law  of  the  domicil  of  the  owner,  and  not  by  the  law  of 
their  local  situation.^ 

§  377.  The  grounds  upon  which  this  doctrine,  as  to 


'  Ante,  i5>  12  to  ^  16;  1  Bonllenois,  Princ.  Gen.  p.  4  to  p.  9;  Id.  Ob- 
serv.  2,  p.  29;  Id.  Observ.  6,  p.  122  to  p.  127  ;  P.  Voet,  De  Statut.  (^  4, 
ch.  2,  n.  2,  p.  117,  edit.  1715  ;  Id.  p.  130,  131,  edit.  1661. 

2  Thus  Mublenbruch  (Doctrina  Pandectarum,  Vol.  1,  lib.  1,  ^  72, 
p.  167)  lays  down  the  following  rule.  Jura,  quae  proxime  rebus  sunt 
scripta,  velut  quae  ad  dominii  causam  spectant,  vel  ad  vectigalium  tributo- 
rumque  onus,  vel  ad  pignorum  in  judicati  executionem  et  capiendorum  et 
distraliendorum,  turn  etiam  rerum  apud  judicem  petendarum  persequenda- 
rumve  rationem,  et  quae  sunt  reliqua  ex  hoc  genere,  aestimantur  ex  legibus 
ejus  civitatis,  ubi  sitae  sunt  res,  de  quibus  agitur,  atque  collocate,  nullo 
rerum  immobilium  atque  mobilium  habito  discritnine. 

3  See  ante,  ^  3G2  ;  post,  ^  377  to  ^  380.  See  Foelix,  Gondii  des  Lois, 
Revue  Etrang.  et  Franc.  Tom.  7,  1840,  p.  216,  217,  218,  221  to  227.  See 
Cockerell  i'.  Dickens,  3  Moore,  Priv.  Coun.  R.  98,  132  ;  Thomson  v.  Her 
Majesty's  Advocate  Gen.  13  Sim.  R.  152,  160  ;  In  re  Bruce  ;  2  Cromp. 
&  Jerv.  436. 


634  CONFLICT    OF   LAWS.  [CH.   IX. 

movables,  is  supported,  are  differently  stated  by  differ- 
ent jurists,  but  the  differences  are  more  nominal  than 
real.  Some  of  them  are  of  opinion  that  all  laws  which 
regard  movables  are  real;  but  at  the  same  time  they 
maintain  that,  by  a  fiction  of  law,  all  movables  are  sup- 
posed to  be  in  the  place  of  the  domicil  of  the  owner,  a 
qm  legem  situmque  accipiunt.  Others  are  of  opinion  that 
such  laws  are  personal,  because  movables  have,  in  con- 
templation of  law  no  situs,  and  are  attached  to  the  per- 
son of  the  owner,  wherever  he  is ;  and,  being  so  adhe- 
rent to  his  person,  they  are  governed  by  the  same  laws 
which  govern  his  person ;  that  is,  by  the  law  of  the 
place  of  his  domicil.^  The  former  opinion  is  main- 
tained by  Paul  Voet,  Rodenburg,  and  Boullenois  ;  and 
the  latter  by  D'Argentre,  Burgundus,  Hertius,  and 
Bouhier.^  Paul  Voet  says  :  Veriim  mohilia  ibi  censeantiir 
esse,  secundum  juris  inteUectum,  tihi  is,  cujiis  ea  sunt,  sedem 


1  "  Mobilia  "  (says  John  Voet)  "  vero  ex  lege  domicilii  ipsius  defuncti, 
vel  quia  semper  domino  presentia  esse  finguntur,  vel  ex  comitate  passim 
usu  inter  gentes  recept^."  J.  Voet,  ad  Pand.  Lib.  38,  tit.  17,  ^  34, 
p.  596.  And  in  another  place  he  adds  :  "  Sed  considerandum,  quadam 
fictione  juris,  seu  malis,  praesumptione,  hanc  de  mobilibusdeterminationem 
conceptam  niti  ;  cum  enim  certo  stabilique  haec  (mobilia)  situ  careant,  nee 
certo  sint  alligata  loco ;  sed  ad  arbitrium  domini  undiquaque  in  domicilii 
locum  revocari  facile  ac  reduci  possint,  et  maximum  domino  plerumque 
comraodum  adferre  soleant,  cum  ei  sunt  praesentia  ;  visum  fuit  hanc  inde 
conjecturam  surgere,  quod  dominus  velle  censeatur,  ut  illuc  omnia  sua  sint 
mobilia,  aut  saltern  esse  intelligantur,  ubi  fortunarum  suarum  larem  sum- 
mamque  conslituit ;  id  est,  in  loco  domicilii."  J.  Voet,  ad  Pand.  Lib.  1, 
tit.  4,  Pt.  2,  ^  II,  p.  44.  Hertius  says;  "Nam  mobiles  ex  conditione 
personse  legem  accipiunt,  nee  loco  continentur."  1  Hertii,  Opera,  De  Col- 
lis.  Leg.  ^  4,  n.  G,  p.  122,  123,  edit.  1737  ;  Id.  p.  174,  edit.  1716  ;  Foe- 
lix,  Conflit  des  Lois,  Pvcvue  Etrang.  et  Franc.  1840,  Tom.  7,  p.  221 ,  222  ; 
ante,  ^  362. 

2  Liverm.  Dissert,  p.  128,  129  ;  1  Boullenois,  Observ.  19,  p.  338  to 
340  ;  1  Hertii,  Opera,  De  Collis.  Leg.  §•  4,  ch.  2,  n.  6,  p.  122,  123,  edit. 
1737  ;  Id.  p.  174,  edit.  1716. 


CH.   IX.]  PERSONAL    PROPERTY.  635 

atque  larem  siiariim  fortimanim  collocavit}  So  Rodenburg : 
Mobilia  quippe  ilia  non  ideo  subjacent  statido  (reali,)  quod 
personale  illud  sit ;  scd  quod  mohilia,  certo  ac  fixo  situ  ca- 
rentia,  ihi  qucmque  situm  velle  habere,  ac  existcrc  intelligi- 
mus,  iihi  larem  ac  fortunarum  fixit  summam,  ^^c.  In  do- 
micilii loco  mobilia  intelligantur  existere?  Again,  in  another 
place  he  says  :  Et  quidem,  de  mobilibus  si  quwratur,  cum 
semper  ibi  esse  existimentur,  ubi  creditor  foret  domicilium, 
cvj'us  ossibus  vagcc  hw  res  intelliguntur  adhwrere?  Boul- 
lenois  affirms  the  same  doctrine ;  and  gives  this  reason 
for  it,  that,  as  movables  have  no  such  fixed  and  perpe- 
tual situs,  as  lands  have,  it  is  necessary  that  their  situs 
should  depend  upon  the  pleasure  of  the  owner,  and 
that  they  have  the  very  situs  which  he  wishes,  when 
they  have  that  of  his  own  domicil.^ 

§  378.  On  the  other  hand,  D'  Argentre  says  :  De 
mobilibus  alia  censura  est ;  quoniam  per  omnia  ex  conditione 
personarum  legem  accipiunt,  et  situm  habere  negantiir,  nisi 
affixa  et  cohcerentia,  nee  loco  contineri  dicuntur  propter  habi- 
litatem  motionis  et  translationis.  Qiiare  statutum  de  bonis 
mobilibus  vere  personale  est,  et  loco  domicilii  judicium  sumit ; 
et  quodcmnque  judex  domicilii  de  eo  statuit,  uhique  locum  ob- 
tinet.  Observatio  indubita  est,  mobilia  personam  seqid,  nee 
situ  judicari,  aid  a  locis  judicium  accipere.^     Bouhier  is 


'  P.  Voet,  De  Stat.  ^  4,  ch.  2,  n.  2,  p.  118,  edit.  1715;  Id.  ^  1), 
ch.  1,  ^  8,  p.  255;  Id.  p.  132,  309,  edit.  1661. 

2  Rodenburg,  De  Divers.  Stat.  tit.  1,  ch.  2,  sub  finem  ;  2  BouUenois, 
Appx.  p.  6  ;   1  BouUenois,  Observ.  2,  p.  25,  28  ;  Id.  Observ.  6,  p.  140. 

3  Rodenburg,  De  Divers.  Stat.  tit.  2,  ch.  5,  §  16  ;  2  BouUenois,  Appx. 
48. 

4  1  BouUenois,  Observ.  16,  p.  223,  224  ;  Id.  Observ.  19,  p.  338;  Id. 
Prin.  Gen.  33,  p.  8  ;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1, 
ch.  20,  p.  750,  751. 

5  D'Argentr6,  De  Leg.  Brit.  Tom.  1,  Des  Donations,  art.  218,  Gloss.  6, 
n.  30,  p.  654  ;  Livernn.  Diss.  ^  213,  p.  128,  129,  130  ;  1  BouUenois,  Ob- 
ser.  19,  p.  339. 


636  CONFLICT    OF    LAAVS.  [CH.    IX. 

quite  as  explicit.  As  movables  (says  he)  have  no  fixed 
situs,  and  are  easily  transported  from  one  place  to  an- 
other, according  to  the  pleasure  of  the  owner,  therefore 
it  is  supposed,  by  a  sort  of  fiction,  that  they  adhere  to 
his  person  ;  and  from  hence  comes  the  maxim  in  our 
customary  law,  that  movables  follow  the  body  or  per- 
son of  the  owner  ;  Meulles  siiivent  le  corps,  ou  la  person- 
ne,  —  Mobilia  sequuntur  personam} 

§  378  a.  Burgundus  puts  the  doctrine  in  the  strong- 
est form.  Puto  eqiddem  (says  he)  mohilia  seqiii  conditio- 
nem  personcc,  id  est,  si  persona  fuerit  servituti  ohnoxia,  bona 
qiioqiie  ejus  mohilia  libera  esse  desinere,  mm  apiid  nos  servi- 
tiis  magis  sit  bononim,  qiiam  personce.  Ut  piita,  si  quis 
natiis  in  simili  rcgione  territorii  Alostensis,  inde  postea  alio 
migraverit^  atqiie  decesserit,  bona  ejus  mobilia  quocumque 
loco  reperta,  cediint  natalis  soli  Domino.  Quia  perinde  ha- 
heri  debent,  ac  si  per  eventum  nativitatis,  alienee  se  piotestati, 
ac  dominio  defiinctus  subjecisset.  Non  aliter  qucim  mobilia 
clerici,  cptce  et  conditionem  ejus  sequuntur.  Sed  tamen,  lit 
existimem,  bona  moventia,  et  mobilia  ita  comitari  personam, 
ut  extra  domicilium  ejus  censeantur  existere,  adduci  sane 
non  possum.  Quod  neqiie  rationi,  neque  juri  scripto  con- 
gruat,  sicuti  nee  doctorum  opinionibus,  aid  forensi  iisu  Jirma- 
tur.  Credo  ego,  mobilia  comitari  personam  quamdiu  domi- 
cilium non  habet.  Quod  utique  procedere  poterit,  si  quis 
domicilio  relicto  naviget,  vel  iter  faciat,  qucerens  quo  se  con- 
ferat,  atque  ubi  domicilium constitu at. ^  Hertius  says  :  JVam 


1  Boiihier,  Cout.  de  Bourg.  ch.  25,  ^  2,  p.  490  ;  1  Boullenois,  Observ. 
19,  p.  338.  —  Les  meubles  (says  Cochin)  quelque  sorte  qu'ils  soient,  sui- 
veni  le  domicile.  Cochin,  O^iivres,  Tom.  5,  p.  85,  4to.  edit.  ;  2  Henrys, 
CEuvres,  Lib.  4,  ch.  6,  Quest,  105,  p.  612;  Id.  720;  ante,  ^  362; 
3  Burge,  Comm,  on  Col  and  For.  Law,  Pt.  2,  ch.  20,  p.  750,  751 ;  Foelix, 
Conflit  des  Lois,  Revue  Etrang.  et  Fran^.  Tom.  7,  ^.  32,  p.  221,  222. 

2  Burgundus,  Tract.  2,  n.  20,  p.  71,  72. 


CH.  IX.]  PERSONAL   PROPERTY.  637 

mobiles  ex  conditione  personce  legem  acciphmt,  nee  loco  con- 
tinentur} 

§  379.  But,  whether  the  one  opinion  or  the  other  is 
adopted,  it  has  been  truly  remarked  by  Boullenois,  that 
the  same  conclusion  is  equally  true,  that  movables  fol- 
low the  person.-  The  probability  is,  that  the  doctrine 
itself  had  not  its  origin  in  any  distinction  between  real 
laws,  or  personal  laws,  or  in  any  fictitious  annexation 
of  them  to  the  person  of  the  owner,  or  in  their  incapa- 
city to  have  a  fixed  sHais  ;  but  in  an  enlarged  policy, 
growing  out  of  their  transitory  nature  and  the  general 
convenience  of  nations.  If  the  law  rei  sitce  were  gene- 
rally to  prevail  in  regard  to  movables,  it  would  be 
utterly  impossible  for  the  owner,  in  many  cases,  to  know 
in  what  manner  to  dispose  of  them  during  his  life,  or  to 
distribute  them  at  his  death ;  not  only  from  the  uncer- 
tainty of  their  situation  in  the  transit  to  and  from  dif- 
ferent places,  but  from  the  impracticability  of  knowing, 
with  minute  accuracy,  the  law  of  transfers  iiiter  vivos,  or 
of  testamentary  dispositions  and  successions  in  the  dif- 
ferent countries  in  which  they  might  happen  to  be. 
Any  change  of  place  at  a  future  time  might  defeat  the 
best-considered  will ;  and  any  sale  or  donation  might 
be  rendered  inoperative,  from  the  ignorance  of  the  par- 
ties of  the  law  of  the  actual  situs  at  the  time  of  their 
acts.     These   would   be   serious   evils,   pervading  the 


>  1  Hertii,  Opera,  De  Collis.  Leg.  ^  4,  n.  6,  p.  122, 123,  edit.  1737 ;  Id. 
p.  174,  edit.  1716;  ante,  ^  362.  See  J.  Voet,  Comm.  ad  Pand,  Vol.  2, 
Lib.  38,  tit.  17.  n.  34,  p.  596. 

2  1  Boullenois,  Observ.  19,  p.  339.  See  also  J.  Voet,  ad  Pand.  Lib. 
38,  tit.  17,  ^34,  p.  596;  Holmes  v.  Remsen,  4  Johns.  Ch.  R.  487; 
1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  1,  p.  28,  29  ;  Foelix, 
Conflit  des  Lois,  Revue  Etrang.  et  Franc.  Tom.  7,  1810,  p.  204,  205, 
206. 

CONFL.  54 


638  CONFLICT    OF   LAWS.  [CH.    IX. 

whole  community,  and  equally  affecting  the  subjects 
and  the  interests  of  all  civilized  nations.  But  in  mari- 
time nations,  depending  upon  commerce  for  their  reve- 
nues, their  power,  and  their  glory,  the  mischief  would 
be  incalculable.  A  sense  of  general  utility,  therefore, 
must  have  first  suggested  the  doctrine  ;  and  as  soon  as 
it  was  promulgated,  it  could  not  fail  to  recommend 
itself  to  all  nations  by  its  simplicity,  its  convenience, 
and  its  enlarged  policy.^ 

§  380.  But,  be  the  origin  of  the  doctrine  what  it  may, 
it  has  so  general  a  sanction  among  all  civilized  nations. 


1  See  Harvey  v.  Richards,  1  Mason,  R.  412;  ante,  ^372;  a.  Mr. 
Justice  Bayley,  in  delivering-  his  opinion  in  the  case  of  In  re  Ewin, 
1  Cromp.  &  Jerv.  156,  said  ;  "  Now  what  is  the  rule  with  respect  to  it  1 
It  is  clear,  from  the  authority  of  Bruce  v.  Bruce,  and  the  case  of  Somer- 
ville  V.  Somerville,  that  the  rule  is,  that  personal  property  follows  the  per- 
son, and  it  is  not,  in  any  respect,  to  be  regulated  by  the  situs  ;  and  if  in  any 
instances  the  situs  has  been  adopted  as  the  rule  by  which  the  property  is 
to  be  governed,  and  the  lex  loci  rei  sita;  resorted  to,  it  has  been  improperly 
done.  Wherever  the  domicil  of  the  proprietor  is,  there  the  property  is  to 
be  considered  as  situate  ;  and,  in  the  case  of  Somerville  v,  Somerville, 
which  was  a  case  in  which  there  was  stock  in  the  funds  of  this  country, 
which  were  at  least  as  far  local  as  any  of  the  stocks  mentioned  in  this  case 
are  local,  there  was  a  question,  whether  the  succession  to  that  property 
should  be  regulated  by  the  English,  or  by  the  Scotch  rules  of  succession. 
The  Master  of  the  Rolls  was  of  opinion,  that  the  proper  domicil  of  the 
party  was  in  Scotland.  And  having  ascertained  that,  the  conclusion  which 
he  drew  was,  that  the  property  in  the  English  funds  was  to  be  regulated 
by  the  Scotch  mode  of  succession  ;  and  if  the  executor  had,  as  he  no  doubt 
would  have,  the  power  of  reducing  the  property  into  his  own  possession, 
and  putting  the  amount  into  his  own  pocket,  it  would  be  distributed  by  the 
law  of  the  country  in  which  the  party  was  domiciled.  Personal  property 
is  always  liable  to  be  transferred,  wherever  it  may  happen  to  be,  by  the  act 
of  the  party  to  whom  that  property  belongs  ;  and  there  are  authorities  that 
ascertain  this  point,  which  bears  by  analogy  on  this  case,  namely,  that  if 
a  trader  in  England  becomes  bankrupt,  having  that  which  is  personal  pro- 
perty, debts,  or  other  personal  property,  due  to  him  abroad,  the  assign- 
ment under  the  commission  of  bankrupt  operates  upon  the  property  and 
effectually  transfers  it,  at  least  as  against  all  those  persons  who  owe  obe- 
dience to  these  bankrupt  laws,  the  subjects  of  this  country." 


CH.  IX.]  PERSONAL   PROPERTY.  639 

that  it  may  now  be  treated  as  a  part  of  the  Jus  Gentiimi. 
Lord  Loughborough  has  stated  it  with  great  clearness 
and  force  in  one  of  his  most  elaborate  judgments.  "  It 
is  a  clear  proposition,"  (said  he,)  "  not  only  of  the  law 
of  England,  but  of  every  country  in  the  world,  where 
law  has  the  semblance  of  science,  that  personal  property 
has  no  locality.  The  meaning  of  that  is,  not  that  per- 
sonal property  has  no  visible  locality ;  but  that  it  is  sub- 
ject to  that  law  which  governs  the  person  of  the  owner  ; 
both  with  respect  to  the  disposition  of  it,  and  with  re- 
spect to  the  transmission  of  it,  either  by  succession,  or 
by  the  act  of  the  party.  It  follows  the  law  of  the  per- 
son. The  owner  in  any  country  may  dispose  of  his 
personal  property.  If  he  dies,  it  is  not  the  law  of  the 
country,  in  which  the  property  is,  but  the  law  of  the 
country  of  which  he  was  a  subject,  that  will  regulate 
the  succession."  ^  The  same  doctrine  was  recognized 
by  Lord  Chief  Justice  Abbott  on  another  important 
occasion.  "  Personal  property  "  (said  he)  "  has  no  local- 
ity. And  even  with  respect  to  that,  it  is  not  correct  to 
say,  that  the  law  of  England  gives  way  to  the  law  of 
the  foreign  country ;  but,  that  it  is  part  of  the  law  of 
England,  that  personal  property  should  be  distributed 
according  to  the  Jus  domicilUy^  The  same  doctrine 
has  been  constantly  maintained,  both  in  England  and 
America,  with  unbroken  confidence  and  general  unani- 
mity.3 


1  Sill  V.  Worswick,  1  H.  Black.  690.  Hoffman  v.  Carew,  22  Wend. 
R.  185,  323.     See  Thomson  v.   Advocate-General,  12  Clark  &  Finn.  1. 

2  Doe  d.  Birtwhistle  v.  Vardill,  5  Barn.  &  Cresw.  438,  451,  452  ;  S.  C. 
6  Bligh,  R.  32  to  88  ;  2  Clark  &  Finn.  R.  571. 

3  The  authorities  on  this  point  are  very  numerous.  See  Henry  on 
Foreign  Law,  p.  13,  14,  15  ;  4  Cowen,  R.  517,  note  ;  2  Kent,  Comm. 
Lect.  36,  p.  428,  &c.,  3d  edit. ;    Id.  p.  405  ;    Karnes  on  Equity,  B.  3, 


640  CONFLICT    OF   LAWS.  [CH.  IX. 

§  381.  Foreign  jurists  are  not  less  expressive  in  its 
favor.  Constat  inter  omnes,  (says  Bretonnier)  qiie  les 
meuhles  suivent  les  'persomies,  et  se  reglent  suivant  la  coii- 
tiime  dii  domicile}  And  he  speaks  but  the  common  lan- 
guage of  the  continental  jurists."  Pothier,  after  re- 
marking that  movables  have  no  locality,  adds :  "  All 
things  which  have  no  locality,  follow  the  person  of  the 
owner,  and  are  consequently  governed  by  the  law  or 
the  custom  which  governs  his  person,  that  is  to  say,  by 
that  of  the  place  of  his  domicil."  ^  Merlin  adopts  lan- 
guage equally  general  and  exact.  "  Movables  "  (says 
he)  "are  governed  by  the  law  of  the  domicil  of  the 
owner,  wherever  they  may  be  situate  ;  and  this  law  of 
course  changes  with  his  change  of  domicil."  '*  Bynker- 
shoek  asserts  the   principle  to  be  so  well   established 


ch.  8,  ^  3,  4  ;  Ersk.  Inst.  B.  3,  tit.  2  ^  40,  p.  515  ;  Dwarris  on  Statutes, 
649,  650  ;  In  re  Ewing,  1  Tyrwhitt,  R.  91  ;  1  Rose,  Bank.  Cas.  478  ; 
5  Barn.  &  Cressw.  451,  452  ;  2  Bell,  Comm.  p.  2  to  p.  10,  4lh  and  5th 
edit.  ;  Piper  v.  Piper,  Ambler,  R.  25  ;  Potter  v.  Brown,  5  East,  R.  130  ; 
Holmes  t).  Remsen,4  Johns.  Ch.  Pi..  460;  Guier  v.  O'Daniel,  2  Binney, 
R.  349,  note;  Bruce  v.  Bruce,  2  Bos.  &  Pull.  229,  note  ;  Liverm.  Diss, 
p.  128  to  p.  132  ;  De  Sobrey  v.  De  Laistre,  2  Harr.  &  Johns.  R.  191, 224  ; 
Hunter  v.  Potts,  4  T.  R.  182,  192;  Phillips  v.  Hunter,  2  H.  Black.  402, 
405 ;  Goodwin  v.  Jones,  3  Mass.  R.  514,  517  ;  Biake  v.  Williams,  6  Pick. 
R.  286,  314;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20, 
p.  740  to  p.  753  ;  French  v.  Hall,  9  N.  Hamp.  R.  137;  Cockerellv.  Dick- 
ens, 3  Moore,  Priv.  Coun.  R.  98,  131,  132. 

1  2  Henrys,  CEuvres,  Lib.  4,  Quest.  127,  p.  720. 

2  See  1  Boullenois,  Observ.  18,  p,  328  ;  Observ.  19,  p.  339,  340 ;  Bou- 
hier,  ch.  22,  p.  429,  ^  79,  ch,  25,  p.  490,  ^  2;  5  Cochin,  CEuvres,  85; 
Liverm.  Diss.  ^  212  to  ^  216,  p.  129,  130 ;  Huberus,  De  Confl.  Leg.  Lib. 
1,  tit.  3,  ^  15.  See  Foelix,  Conflit  des  Lois,  Revue  Elrang.  et  Franc. 
Tom.  7,  1840,  ^  32  to  «^  35,  p.  221  to  p.  229. 

3  Pothier,  Coutume  d"0rl6ans,  ch.  1,  ^  2,  Tom.  10,  p.  7,  4to  edit. ;  Id. 
Traii6  des  Choses,  ^  3,  Tom.  8,  p.  109,  4to  edit. 

4  Merlin,  Repert.  Biens,  ^  1,  n.  12  ;  Id.  Meubles,  ^  1  ;  Id.  Loi,  ^  6, 
n.  3. 


CH.  IX.]  PERSONAL   PROPERTY.  641 

that  no  one  has  dared  to  question  it :  Adeo  vccepta  hodic 
sententia  est,  tit  nemo  ausit  contra  luscere}  Huberus  says : 
Venmi  in  mohilibus  nihil  esse  causae,  cur  aliiid,  qiiam  jus 
domicilii  sequamur  ;  quia  res  moUles  non  liabent  affectionem 
versus  territoriumy  sed  ad  personam  patrisfamilias  duntaxat, 
qui  aliud,  quam  quod  in  loco  domicilii  oUinehat,  voluisse  oh- 
tinere  non  potest?  So  that  there  seems  a  general,  al- 
though not  an  entire  harmony  on  this  point  between 
foreign  jurists  and  domestic  jurists.^ 


1  2  Kent,  Comm.  Lect.  37,  p.  429,  3d  edit.  ;  Bynkershoek,  Quest. 
Priv.  Juris.  Lib.  1,  cap.  16,  p.  179,  180,  edit.  1744.  —  Bynkershoek,  in 
the  passage  here  referred  to,  is  speaking  of  the  right  of  succession ;  but 
his  language  has  been  thought  susceptible  of  a  broader  interpretation. 
See  post,  ^  483. 

2  Huberus,  P.  1,  Lib.  3,  Tom.  1,  De  Success,  ab  Intest.  n.  21  (s.) 

3  See  Fcfilix,  Conflit  des  Lois,  Revue  Etrang.  et  Franc.  Tom.  7,  1840, 
^  32  to  ^  35,  p.  221  to  229.  See  also  Muhlenbruch,  Doctr.  Pand.  Tom. 
1,  Lib.  1,  ^  72,  73,  p.  166  to  p.  170,  who  seems  to  make  the  law  rei  situs 
govern,  in  many  cases,  as  well  with  respect  to  movables  as  immovables. 
Jura,  quas  proxime  rebus  sunt  scripta,  vel  quae  ad  dominii  causam  spec- 
tant,  &c.  &c.,  sestimantur  ex  legibus  ejus  civitatis,  ubi  sitae  res,  de  quibus 
agitur,  atque  collocatae,  nullo  rerum  immobilium  atque  mobilium  habito 
discrimine.  Id.  ^  72.  Mr.  Foelix  says  on  this  subject :  "  Par  la  nature 
des  choses,  les  meubles,  soit  corporels,  soit  incorporels,  n'ont  pas,  k  I'^gal 
des  immeubles,  une  assiette  fixe  dans  I'endroit  ou  ils  se  trouvent  de  fait : 
ils  dependent  n^cessairement  de  la  personne  de  I'individu,  a  qui  ils  appar- 
tiennent,  et  ils  subissent  la  destination,  qu'il  leur  donne.  Chaque  indivi- 
du  etantlegalement  cens6  avoir  r^uni  sa  fortune  au  lieu  de  son  domicile, 
c'est-a  dire  au  si6ge  principal  de  ses  affaires,  on  a  toujours  regard^  en  droit 
les  meubles  comme  se  trouvent  au  lieu  du  domicile  de  celui,  a  qui  ils  ap- 
paniennent  ;  peu  importe  si,  de  fait,  ils  se  trouvent  ou  non  au  dit  lieu. 
Par  une  fiction  legale,  on  les  consid^re  comme  suivant  la  personne,  et 
comme  6tant  soumis  a  la  meme  loi,  qui  regit  I'^tat  et  la  capacite  de  cette 
personne  ;  et  nous  avons  vu  (supra  n°  21)  que  cette  loi  est  celle  du  domi- 
cile (mobilia  sequuntur  personam  ;  mobilia  ossibusinhcerent.)  En  d'autres 
termes,  le  statut  personnel  gouverne  les  meubles  corporels  ou  incorporels. 
Ce  statut  est  a  leur  6gard  r6el  par  suite  de  la  fiction,  qui  les  repute  se 
trouver  au  lieu  r^gi  par  ce  miSme  statut.  Tel  a  toujours  iii^  le  sentiment 
presque  unanime  des  auteurs  et  des  cours  de  justice.  Tt'smoins  Dumou- 
lin,  Chopin,  Bretonnier,  D'Argcntrc,  Brodeau,  Lebrun,  Poullain  du  Pare, 
Burgundus,  Rodenburg,  Abraham  a  Wesel,  Paul  Voet,  John  Voet,  Sand6, 

54* 


642  CONFLICT    OF   LAWS.  [CH.  IX. 

§  382.  When,  however,  we  speak  of  movables,  as 
following  the  person  of  the  owner,  and  as  governed  by 
the  law  of  his  domicil,  we  are  to  limit  the  doctrine  to 
the  cases  in  which  they  may  be  properly  said  to  retain 
their  original  and  natural  character.  For  movables 
may  become  annexed  to  immovables,  either  by  incorpo- 
ration, or  as  incidents ;  and  then  they  take  the  charac- 
ter of  the  latter.^  Thus  in  the  language  of  the  com- 
mon law,  movables,  annexed  to  the  freehold,  are  deemed 
a  part  of  the  latter.  Such  are  the  common  cases  of 
fixtures  of  personal  property  in  houses,  in  mills,  and  in 
other  hereditaments,  whether  for  use  or  for  ornament. 
In  the  law  of  foreign  countries  a  similar  distinction  is 
recognized ;  and  wherever  movables  become  thus  fixed 
by  operation  of  law,  or  by  the  express  determination 
of  the  owner,  they  are  deemed  a  part  of  the  immova- 
ble property.-     John  Voet  ranks  them  among  immova- 


Christin,  Gaill,  Carpzov,  Wernher,  IMevius,  Franzke,  Boullenois,  Pothier, 
Struve,  Leyser,  Huber,  Hert,  Hommel,  Danz,  Gluck,  Thibaut,  Merlin, 
MM.  Mittermaier,  Hauss,  Meier,  Favard,  Duranton,  Story,  Wheaton, 
Rocca,  et  Burge.  Trois  auteurs  seulement  ne  sont  pas  enti^rement  d'ac- 
cord,  en  cette  matiere,  avec  ceux  que  nous  venons  de  citer  :  ce  sont  Titt- 
raan,  M.  Muhlenbruch,  et  M.  Eichhorn.  Le  premier,  en  soumettant  les 
meubles  a  la  meme  loi,  qui  r^git  les  immeubles,  ne  s'attache  qu'a  I'un  des 
cas  exceptionnels,  dont  nous  parlerons  au  n°  33  ci-apres,  sans  examiner  la 
regie  elle-meme.  M.  Muhlenbruch  repousse  toute  distinction  entre  les 
meubles  et  les  immeubles  par  rapport  a  la  loi,  qui  les  r6git,  par  le  seul 
motif,  que  I'opinion  contraire  etablirait  une  difltirence  entre  la  succession 
dans  les  immeubles  et  celle  dans  les  meubles  du  meme  individu  ;  nous 
dtmonterons  au  n°  ci-apres  la  n6cessit6  de  reconnaitre  cette  difference. 
M.  Eichhorn,  en  rejetant  I'application  de  la  loi  de  la  situation  des  meubles, 
n'admet  cependant  la  regie,  qu'avec  la  modification,  que,  selon  les  circon- 
stances,  il  faudra  appliquer  la  loi  du  lieu  ou  la  cause  se  plaidera  :  il  cite 
comme  exemple  le  cas  ou  le  defendeur  en  revendication  invoque  la  max- 
ime,  qu'en  fait  de  meubles  possession  vaut  titre."  FceHx,  Conflit  des 
Lois,  Revue  Etrang.  et  Franc.  1840,  Tom.  7,  §  32,  p.  222  to  p.  224. 

1  Ante,  §  371  ;  post,  ^  447. 

~  Pothier,  Traite  des  Choses,  §  1  ;  Id.  Coutume  d'Orleans,  ch.   3,  art. 


CH.  IX.]  PERSONAL    PROPERTY.  643 

bles.  Idemque  statuendimi  in  mohilibiis,  inr  loatriBfamilias 
destinationem  peiydid  iisus  gratia  ad  cerium  bmni,  domiim 
puta,  vel  fundiim,  delaiis,  Ha  ut  perpetuo  illic  istius  iisiis 
causa  mansura  sint,  etiamsi  vel  nunqiiam  immohilihis  natu- 
raliter  jungenda  sint,  vel  ex  destinatione  jungenda,  nccdiim 
tamen  inceperint  immohilihis  juncta  esse,  modo  ad  ipsas 
cedes  fundosve,  qidhus  jungenda  sunt,  delata  fuerint} 
Among  the  class  of  immovables  are  also  ranked  (as  we 
have  seen)  heritable  bonds  by  the  Scottish  law,  and 
ground-rents,  and  other  rents  charged  on  lands.^ 

§  383.  It  follows,  as  a  natural  consequence  of  the  rule 
which  we  have  been  considering,  (that  personal  pro- 
perty has  no  locality,)  that  the  laws  of  the  owner's  domi- 
cil  should  in  all  cases  determine  the  validity  of  every 
transfer,  alienation,  or  disposition  made  by  the  owner, 
whether  it  be  inter  vivos,  or  be  post  mortem?  And  this 
is  regularly  true,  unless  there  is  some  positive  or  cus- 
tomary law  of  the  country  where  they  are  situate,  pro- 
viding for  special  cases,  (as  is  sometimes  done,)  or  from 
the  nature  of  the  particular  property,  it  has  a  necessa- 
rily implied  locality.^     Lord  Mansfield  has  mentioned. 


46,  47,  48;  Merlin,  Repert.  Biens,  ^  1,  n.  13,  i^*  2,  n.  1  ;  Id.  Meubles, 
^  2,  3  ;  1  Bell,  Comm.  ^  660,  p.  648  to  p.  652,  4th  edit.  ;  2  Bell,  Comm. 
p.  2,  3,  4,  4th  edit.  ;  1  Bell,  Comm.  p.  752  to  p.  755,  and  2  Bell,  Comm. 
p.  1  to  p.  10  ;  1  Boullenois,  Observ.  19,  p.  340,  341  ;  1  Karnes  on  Equity, 
B.  3,  ch.  8,  ^  3 ;  Ersk.  Inst.  B.  3,  tit.  9,  §  4. 

1  J.  Voet,  ad  Pand.  Lib.  1,  tit.  8,  n.  14,  p.  67. 

2  1  Bell,  Comm.  ^  660,  p.  648  to  p.  652  ;  2  Bell,  Comm.  p.  2,  3,  4, 
4th  edit.  ;  Ersk.  Inst.  B.  2,  ch.  2,  ^  9  to  ^20;  Pothier,  Trait6  des  Cho- 
ses,  ^  3 ;  ante,  ^  366,  367,  and  note  ;  post,  ^  447, 

3  Livermore,  Diss.  ^  2J5  to  ^  220,  p.  130  to  p.  137;  French  v.  Hall, 
9  N.  Kamp.  R.  137 ;  Sessions  v.  Little,  9  N.  Hamp.  R.  271 ;  Rue  High, 
Appellant,  2  Doug.  Mich.  522. 

4  Mr.  Chief  Justice  Tilghman  on  one  occasion  said:  "The  proposi- 
tion "  (that  personal  property  has  no  locality,  but  is  transferred  according 


644  CONFLICT    OF   LAWS.  [CH.  IX. 

as  among  the  latter  class,  contracts  respecting  the  pub- 
lie  funds  or  stocks,  the  local  nature  of  which  requires 
them  to  be  carried  into  execution  according  to  the  local 
law/  The  same  rule  may  properly  apply  to  all  other 
local  stock  or  funds,  although  of  a  personal  nature,  or 
so  made  by  the  local  law,  such  as  Bank  stock,  Insur- 
ance stock,  Turnpike,  Canal,  and  Bridge  shares,  and 
other  incorporeal  property,  owing  its  existence  to,  or 
regulated  by,  peculiar  local  laws.^     No  positive  transfer 


to  the  law  of  the  country  in  which  the  owner  is  domiciled)  "  is  true  ia 
general,  but  not  to  its  utmost  extent,  nor  without  several  exceptions.  In 
one  sense  personal  property  has  locality,  that  is  to  say,  if  tangible,  it  has 
a  place  in  which  it  is  situated,  and  if  invisible,  (consisting  of  debts,)  it  may 
be  said  to  be  in  the  place  where  the  debtor  resides;  and  of  these  circum- 
stances the  most  liberal  nations  have  taken  advantage,  by  making  such 
property  subject  to  regulations  which  suit  their  own  convenience."  "  Every 
country  has  a  right  of  regulating  the  transfer  of  all  personal  property 
within  its  territory  ;  but  when  no  positive  regulation  exists,  the  owner 
transfers  it  at  his  pleasure."  Moreton  v.  Milne,  6  Binn.  R.  361 ;  3  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  751,  752  ;  ante,  §  364, 
and  note. 

1  Robinson  v.  Bland,  2  Burr.  R.  1079;  S.  C.  1  W.  Black.  R.  247; 
ante,  ^  364. 

2  2  Bell,  Comm.  p.  4,  5,  4th  edit.  ;  Id.  p.  1  to  10,  5th  edit.  ;  1  Bell, 
Comm.  p.  65,  67,  68,  4th  edit.  ;  Id.  p.  105  to  p.  108,  5th  edit. ;  3  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  750,  751,  752.  — Mr. 
Burge  says,  that  although  stocks  of  this  nature  can  only  be  transferred  ac- 
cording to  the  forms  of  the  lex  rei  sitaB,  so  as  to  confer  a  legal  title  on  the 
purchaser  ;  yet  it  will  give  the  purchaser  a  right  of  action  to  compel  the 
vendor  to  make  a  transfer  in  the  manner  required  by  the  local  law.  Ibid.  ; 
ante,  ^  364,  note.  Erskine,  in  his  Institutes,  (B.  3,  tit.  9,  i^  4,)  puts  the 
like  exceptions.  "  We  must  except,"  says  he  "  from  this  general  rule,  as 
Civilians  have  done,  certain  movables,  which  by  the  destination  of  the  de- 
ceased are  considered  as  immovables.  Among  these  may  be  reckoned  the 
shares  of  the  trading  companies,  or  of  the  public  stocks  of  any  country, 
for  example,  the  Banks  of  Scotland,  England,  and  Holland,  The  South 
Sea  Company,  &c.,  which  are,  without  doubt,  descendible,  according  to 
the  law  of  the  State  where  such  stocks  are  fixed.  But  the  bonds  or  notes 
of  such  companies  make  no  exception  from  the  general  rule.  They  are 
accounted  part  of  the  movable  estate  of  the  deceased."    Ante,  ^  364,  365; 


CH.  IX.]  PERSONAL   PROPERTY.  645 

can  be  made  of  such  property,  except  in  the  manner 
prescribed  by  the  local  regulations.^  But,  nevertheless, 
contracts  to  transfer  such  property  would  be  valid,  if 
made  according  to  the  Lex  domicilii  of  the  owner,  or  the 
Lex  loci  contractus,  unless  such  contracts  were  specially 
prohibited  by  the  Lex  rei  sitce  ;  and  the  property  would 
be  treated  as  personal,  or  as  real,  in  the  course  of  ad- 
ministration, according  to  the  local  law.^ 

§  384.  Subject  to  exceptions  of  this  and  the  like 
nature,  (such  as  the  statutable  transfer  of  ships,  and  of 
goods  in  the  warehouses,  or  in  the  docks  of  a  govern- 
ment, which  would  fall  within  the  same  predicament,) 
the  general  rule  is,  that  a  transfer  of  personal  property, 
good  by  the  law  of  the  owner's  domicil,  is  valid,  wher- 
ever else  the  property  may  be  situate.^  But  it  does 
not  follow,  that  a  transfer  made  by  the  owner,  accord- 


Post,  ^  398  ;  Robertson  on  Successions,  p.  94,  95.  See  Attor.  Gen.  v. 
Dimond,  1  Cromp.  &  Jerv.  356,  370,  371  ;  Attor.  Gen.  v.  Hope,  1  Cromp. 
Mees.  &  Rose.  538  ;  S.  C.  8  Bligh,  R.  44 ;  S.  C.  2  Clark  &  Finnell.  R. 
84  ;  Att.  Gen.  v.  :6onvvers,  4  Mees.  &  Welsh.  171,  191,  192,  193  ;  post, 
§432. 

1  Though  stock  abroad  may  be,  as  to  its  transfer,  affected  by  the  local 
laws,  it  is  not  to  be  treated,  as  of  course,  as  partaking  of  the  character  of 
real  estate  and  descendible  as  such.  On  the  contrary,  if  it  be  by  the  local 
law  personal  estate,  it  may  be  disposed  of  by  an  administration,  as  such  ; 
and  the  title  passes,  if  it  be  made  in  the  forms  prescribed  by  the  foreign 
law.  See  Attor.  Gen.  v.  Dimond.  1  Tyrwhitt,  R.  243.  In  the  matter  of 
Ewing,  1  Tyrwhitt,  R.  91 ;  Ersk.  Inst.  B.  3,  tit.  9,^4;  1  Bell,  Comm. 
p.  65;  2  Bell,  Comm.  p.  4,  5,  4th  and  5th  edit.  ;  ante,  364,  365. 

2  Abbott  on  Shipp.  Pt.  1,  ch.  2,  §  10  ;  1  Chitty  on  Comm.  and  Manuf. 
556,  558,  509,  &;c.  ;  2  Kent,  Comm.  Lect.  45,  p.  145,  146,  3d  edit. 

3  1  Karnes  on  Equity,  B.  3,  ch.  8,  §  3.  —  In  the  case  of  a  movable  sub 
ject  (says  Erskine)  lying  in  Scotland,  the  deed  of  transmission,  if  perfected 
according  to  the  lex  domicilii,  is  effectual  to  carry  the  property,  for  mova- 
bles have  no  permanent  situation.  Ersk.  Inst.  B.  3,  tit.  2,  §  40,  p.  515  ; 
3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  750,  751,  752  ; 
ante,  §  364,  note. 


646  CONFLICT    OF   LAWS.  [CH.  IX. 

ing  to  the  law  of  the  place  of  its  actual  situs,  would  not 
as  completely  devest  his  title ;  nor  even  that  transfer 
by  him  in  any  other  foreign  country,  which  would  be 
good  according  to  the  law  of  that  country,  would  not  be 
equally  effectual,  although  he  might  not  have  his  do- 
micil  there.  For  purposes  of  this  sort,  his  personal 
property  may  in  many  cases  be  deemed  subject  to  his 
disposal,  wherever  he  may  happen  to  be  at  the  time  of 
the  alienation.  Thus,  a  merchant  domiciled  in  Ame- 
rica, may  doubtless  transfer  his  personal  property  ac- 
cording to  the  law  of  his  domicil,  wherever  the  property 
may  be.  But,  if  he  should  direct  a  sale  of  it,  or  make 
a  sale  of  it  in  a  foreign  country,  where  it  is  situate  at 
the  time,  according  to  the  laws  thereof,  either  in  per- 
son or  by  an  agent,  the  validity  of  such  a  sale  would 
scarcely  be  doubted.  If  a  merchant  is  temporarily 
abroad,  he  is  understood  to  possess  a  general  authority 
to  transfer  such  personal  property  as  accompanies  his 
person  wherever  he  may  be ;  so  always  that  he  does 
not  violate  the  law  of  the  country  where  the  act  is 
done.'  The  general  convenience  and  freedom  of  com- 
merce require  this  enlargement  of  the  rule ;  for  other- 
wise the  sale  of  personal  property  actually  situate  in  a 
foreign  country,  and  made  according  to  the  forms  pre- 
scribed by  its  laws,  might  be  declared  null  and  void  in 
the  country  of  the  domicil  of  the  owner.  In  the  ordinary 
course  of  trade  with  foreign  countries,  no  one  thinks  of 
transferring  personal  property  according  to  the  forms 
of  his  own  domicil ;  but  it  is  transferred  according  to 
the  forms  prescribed  by  the  law  of  the  place  where  the 
sale  takes  place. 


J  See  1  Karnes  on  Equity,  B.  3,  ch.  8,  ^  3. 


CH.  IX.]  PERSONAL  PROPERTY.  647 

§  385.  A  question,  involving  other  considerations, 
may  be  presented  ;  and  that  is,  whether  a  transfer  of 
personal  property  is  good,  which  is  made  according  to 
the  law  of  the  owner's  domicil,  but  not  in  conformity 
to  the  law  of  the  place  where  it  is  situate?  And 
whether  there  is  any  difference  in  such  a  case  between 
the  transfer  being  made  by  the  owner  in  his  place  of 
domicil,  or  its  being  made  in  the  place  rei  sitce  ?  For 
instance,  let  us  suppose  that,  by  the  law  of  the  domicil 
of  the  owner,  a  sale  of  goods  is  complete  and  perfect 
to  pass  the  title  without  any  delivery ;  and  that,  by 
the  law  of  the  place  of  their  situs  the  sale  is  not  com- 
plete until  delivery.  In  such  a  case,  if  the  transfer  of 
the  goods  is  made  in  the  domicil  of  the  owner,  would  it 
be  valid  without  any  delivery  thereof,  so  as  to  pass  the 
title  against  third  persons  ?  If  it  would,  in  such  a  case, 
what  would  be  the  effect  if  the  transfer  was  made  in 
the  place  where  the  goods  were  situate,  without  any 
such  delivery  ? 

§  386.  The  former  question  has  been  much  discussed 
in  the  courts  of  Louisiana,  from  a  supposed  difference 
between  the  rule  of  the  common  law  and  that  of  the 
civil  law  on  this  subject.  By  the  common  law  a  sale  of 
goods  is,  or  may  be,  complete  without  delivery.^     But 


1  The  common  law  deems  a  sale,  as  between  the  parties,  complete  with- 
out delivery  ;  but  not  as  to  third  persons.  If,  therefore,  a  sale  is  made, 
the  purchaser,  in  order  to  complete  his  title  against  creditors  and  other 
purchasers,  must  take  possession  within  a  reasonable  time.  Where  the 
property  is  at  sea  at  the  time,  and  is  incapable  of  delivery,  there  the  title 
is  complete  without  delivery.  But  it  may  be  lost  by  an  omission  to  take 
possession  within  a  reasonable  time  after  its  arrival  in  port.  See  Meeker 
V.  Wilson,  1  Gall.  R.  419  ;  1  Black.  Comm.  446,  448  ;  2  Kent,  Comm. 
492,  493,  498  ;  Id.  p.  515  lo  522  ;  Bohlen  v.  Cleaveland,  5  Mason,  R. 
174  ;  3  Chitty  on  Comm.  and  Manuf.  cli.  5,  ^  2,  p.  272,  &c. ;  Lanfear  v. 
Sumner,  17  Mass.  R.  110;    Bigelow's  Digest,  Sale,  A.  B.  ;  post,  ^  389, 


648  CONFLICT    OF   LAWS.  [CH.  IX. 

by  the  law  of  Louisiana,  delivery  is  necessary  to  com- 
plete the  transfer,  according  to  the  well-known  rule  of 
the  civil  law  ;  TradUionihus  et  iisiicapionihus  dominia  re- 
rum,  noil  nudis  pactis,  transferimtur}  Upon  the  fullest 
examination,  and  after  repeated  arguments,  the  Su- 
preme Court  of  Louisiana  have  held  the  doctrine,  that 
the  transfer  of  personal  property  in  that  State  is  not 
complete,  so  as  to  pass  the  title  against  creditors,  un- 
less a  delivery  is  made  in  conformity  to  the  laws  of 
that  State,  although  the  transfer  is  made  by  the  owner 
in  his  foreign  domicil,  and  would  be  good  without  de- 
livery by  the  laws  of  that  domicil.^ 

§  387.  The  reasoning  by  which  this  doctrine  is  main- 
tained, is  most  fully  developed  in  a  case  in  which  a 
transfer  of  a  part  of  a  ship  was  made  in  Virginia,  the 
ship  at  the  time  of  the  sale  being  locally  at  New  Or- 
leans ;  and,  before  any  delivery  thereof,  she  was 
attached  by  the  creditors  of  the  vendor.^  It  was,  there- 
fore, a  case  of  conflict  of  rights  between  the  creditor 
and  the  purchaser.  The  learned  Judge,"*  who  delivered 
the  opinion  of  the  Court  on  that  occasion,  said  ;  "  The 
position  assumed  in  the  present  case  is,  that  by  the 


note.  See  also  Long  on  Sales,  by  Rand,  edit.  1839  ;  oh.  7,  p.  259  to 
p.  307. 

1  Cod.  Lib.  2,  tit.  3, 1.  20  ;  Olivier  v.  Townes,   14  Martin,  R.  93,  102  ; 
Norris  v.  Mumford,  4  Martin,   R.   20;    Dumford  v.   Brooks's  Syndics, 

3  Martin,  R.  222,  225. 

2  Tiie  point  appears  to  have  been   first  decided  in  Norris  v.  Mumford, 

4  Martin,  R.  20;  and  it  has  been  repeatedly  since  adjudged  in  other  cases, 
and  particularly  in  Rannsay  v.  Stevenson,  5  Martin,  R.  23 ;  Fisk  v.  Chand- 
ler, 7  Martin,  R.  24  ;  and  Olivier  v.  Townes,  14  Martin,  R.  93.  Mr.  Liv- 
ermore  has  contested  the  doctrine  asserted  in  these  decisions  with  great 
earnestness  and  ability.     Liverm.  Diss.  ^  220  to  ^  223,  p.  137  to  p.  140. 

3  Olivier  r.  Townes,  14  Martin,  R.  93,  102. 
^  Mr.  Justice  Porter. 


CH.  IX.]  PERSONAL   PROPERTY.  649 

laws  of  all  civilized  countries,  the  alienation  of  movable 
property  must  be  determined  according  to  the  laws, 
rules,  and  regulations  in  force,  where  the  owner's  do- 
micil  is  situated.  Hence,  it  is  insisted,  that,  as  by  the 
law  existing  in  the  State  where  the  vendor  lived,  no 
delivery  was  necessary  to  complete  the  sale,  it  must  be 
considered  as  complete  here ;  and,  that  it  is  a  violation 
of  the  principle  just  referred  to,  to  apply  to  the  contract 
rules,  which  are  peculiar  to  our  jurisprudence,  and  dif- 
ferent from  those  contemplated  by  the  parties  to  the 
contract." 

§  388.  "We  readily  yield  an  assent  to  the  general 
doctrine  for  which  the  appellee  contends.  He  has 
supported  it  by  a  variety  of  authorities  drawn  from 
different  systems  of  jurisprudence.  But  some  of  those 
very  books  furnish  also  the  exception  on  which  we 
think  this  case  must  be  decided,  namely,  that  '  when 
those  laws  clash  with,  and  interfere  with  the  rights  of 
the  citizens  of  the  countries  where  the  parties  to  the 
contract  seek  to  enforce  it,  as  one  or  other  of  them  must 
give  way,  those  prevailing,  where  the  relief  is  sought, 
must  have  the  preference.'  Such  is  the  language  of 
the  English  books  to  which  we  have  been  referred  ; 
and  Huberus,  whose  authority  is  more  frequently  re- 
sorted to  on  this  subject  than  that  of  any  other  writer, 
because  he  has  treated  it  more  extensively  and  with 
greater  ability,  in  his  Treatise  De  Covflidu  Lef/iim, 
(n.  11,)  tells  us,  Ejfcda  eontractuum,  certo  loco  initonim, 
j)rojure  lociilUus  alibi  quoqiie  ohservcmttir,  si  niiUiim  inde 
civihus  alienis  creeiur  prejuclicium,  in  jure  sihi  qucesito. 
The  effects  of  a  contract  entered  into  at  any  place,  will 
be  allowed,  according  to  the  law  of  that  place  in  other 
countries,  if  no  inconvenience  will  result  therefrom,  to 
the  citizens  of  that  other  country,  with  respect  to  the 


650  CONFLICT    OF    LAWS.  [CH.  IX. 

right  wliich  they  demand.  This  distinction  appears  to 
us  founded  on  the  soundest  reasons.  The  municipal 
laws  of  a  country  have"  no  force  beyond  its  territorial 
limits ;  and  when  another  government  permits  these  to 
be  carried  into  effect  within  her  jurisdiction,  she  does 
so  upon  a  principle  of  comity.  In  doing  so  care  must 
be  taken  that  no  injury  is  inflicted  on  her  own  citizens  ; 
otherwise  justice  would  be  sacrificed  to  courtesy.  Nor 
can  the  foreigner  or  stranger  complain  of  this.  If  he 
sends  his  property  within  a  jurisdiction  different  from 
that  where  he  resides,  he  impliedly  submits  it  to  the 
rules  and  regulations  in  force  in  the  country  where  he 
places  it.  What  the  law  protects,  it  has  a  right  to 
regulate.  A  strong  evidence  of  this  is  furnished  by 
the  doctrine  in  regard  to  successions.  The  general 
principle  is,  that  the  personal  property  must  be  dis- 
tributed according  to  the  law  of  the  State  where  the 
testator  dies ;  but,  so  far  as  it  concerns  creditors,  it  is 
governed  by  the  law  of  the  country  where  the  property 
is  situated.  If  an  Englishman  or  a  Frenchman  dies 
abroad  and  leaves  effects  here,  we  regulate  the  order  in 
which  his  debts  vare  paid  by  our  jurisprudence,  not  by 
that  of  his  domicil."  ^ 

§  389.  "  We  proceed  to  examine,  whether,  giving  ef- 
fect to  the  law  of  Virginia,  on  the  contract  now  set  up, 
would  be  working  an  injury  to  this  State,  or  its  citizens. 
In  doing  this,  we  must  look  to  the  general  doctrine, 
and  the  effect  it  would  have  on  our  ordinary  transac- 
tions, as  well  as  its  operation  in  this  particular  case. 
If  we  held  here,  that  this  sale  can  defeat  the  attach- 
ment, we  should,  on  the  same  principle,  be  obliged  to 


1  Post,  \S  524. 


CH.  IX.]  PERSONAL   FROPERTY.  651 

decide,  that  the  chiimant  would  hold  the  object  sold  in 
preference  to  a  second  purchaser,  to  whom  it  was  de- 
livered ;  the  rule  being,  that,  when  the  debtor  can  sell, 
and  give  to  the  buyer  a  good  title,  the  creditor  can 
seize ;  or,  in  other  words,  where  the  first  sale  is  not 
complete  as  to  third  persons,  the  creditor  may  attach 
and  acquire  a  lien.^  In  relation  to  movable  property, 
our  law  has  provided,  that  delivery  is  essential  to  com- 
plete the  contract  of  sale,  as  to  third  parties.  This  val- 
uable provision,  by  which  all  our  citizens  are  bound  in 
their  dealings,  protects  them  from  the  frauds,  to  which 
they  would  be  daily  subjects,  were  they  liable  to  be 
affected  by  previous  contracts,  not  followed  by  the  giv- 
ing of  possession.  The  exemption  contended  for  here, 
in  behalf  of  the  residents  of  another  State,  would  de- 
prive them  of  that  protection,  wherever  their  rights,  as 
purchasers,  came  in  contact  with  strangers ;  a  protec- 
tion, which,  it  may  be  remarked,  it  is  of  the  utmost  im- 
portance, owing  to  our  peculiar  position,  that  we  should 
carefully  maintain.  This  city  is  becoming  a  vast  store- 
house for  merchandise  sent  from  abroad,  owned  by  non- 
residents, and  deposited  here  for  sale  ;  and  our  most 
important  commercial  transactions  are  in  relation  to 
property  so  situated.  If  the  purchasers  of  it  should  be 
affected  by  all  the  previous  contracts  made  at  the  own- 
ers' domicil,  although  unaccompanied  by  delivery,  it  is 
easy  to  see,  to  what  impositions  such  a  doctrine  would 
lead ;  to  what  inconvenience  it  would  expose  us ;  and 
how  severely  it  would  check  and  embarrass  our  deal- 
ings. However  anxious  we  may  be  to  extend  courtesy, 
and  afford  protection  to  the  people  of  other  countries. 


1  IMcNeil  V.  Glass,  13  Martin,  R.  261. 


652  CONFLICT    OF   LAWS.  [CH.  IX. 

who  come  themselves,  or  send  their  property,  -within 
our  jurisdiction,  we  cannot  indulge  our  feelings  so  far, 
as  to  give  a  decision,  that  would  let  in  such  consequen- 
ces as  we  have  just  spoken  of  It  would  be  giving  to 
the  foreign  purchaser  an  advantage  which  the  resident 
has  not ;  and  that,  frequently,  at  the  expense  of  the 
latter.  This,  in  the  language  of  the  law,  we  think, 
would  be  a  great  inconvenience  to  the  citizens  of  this 
State ;  and,  therefore,  we  cannot  sanction  it."  ^ 

§  390.  There  is  certainly  great  force  in  this  reason- 
ing upon  general  principles.  And  no  one  can  seriously 
doubt,  that  it  is  competent  for  any  State  to  adopt  such 
a  rule  in  its  own  legislation,  since  it  has  perfect  juris- 
diction over  all  property,  personal  as  well  as  real,  with- 


1  Olivier  v.  Townes,  14  Martin,  R.  97  to  103.  Bat  see  1  Kames  on 
Equity,  B.  3,  ch.  8,  ^  3.  —  The  doctrine  of  this  case  seems  supported  by 
that  of  Lanfear  v.  Sumner,  (17  Mass.  R.  110,)  although  in  the  latter  case 
the  Court  do  not  found  their  judgment  upon  any  supposed  conflict  between 
foreign  and  domestic  laws.  There  can  be  little  doubt  that  the  sale  and 
assignment  in  Philadelphia  in  that  case  was  a  complete  transfer  by  the  Lex 
loci  contractus  ;  and  there  was  certainly  legal  diligence  in  endeavoring  to 
obtain  possession  after  the  sale.  The  Court,  however,  thought  that  de- 
livery was  essential  to  perfect  the  transfer  by  the  law  of  Massachusetts  ; 
and,  as  there  had  been  no  delivery  until  the  property  was  attached  by  the 
attaching  creditor  in  Massachusetts,  they  decided  in  favor  of  the  title  of 
the  latter  against  the  vendee.  The  Court  also  said,  that,  where  each  of  the 
parties  claimed  the  same  goods  by  a  legal  title,  he  who  first  obtained  pos- 
session would  hold  against  the  other;  and  for  this  principle  they  relied  on 
Lamb  v.  Durant,  12  Mass.  R.  54;  and  Caldwell  v.  Ball,  1  T.  R.  205. 
The  former  case  is  certainly  in  point.  But  in  the  latter  the  decision  was 
in  favor  of  the  party  who  first  had  acquired  a  legal  title  by  the  prior  in- 
dorsement of  the  bills  of  lading  to  him.  "  Whoever,"  said  Ashhurst,  J., 
"  was  first  in  possession  (not  of  the  goods,  but)  of  either  of  these  bills  of 
lading,  had  the  legal  title  vested  in  him."  Buller,  J.,  said  ;  "  Both  parties 
claim  under  T.  ;  but  F.  &  Co.  have  the  first  legal  right,  for  two  bills  of 
lading  were  first  indorsed  to  them."  But  see  Conrad  v.  Atlantic  Insur- 
ance Co.  1  Peters,  Sup.  C.  R.  386,  445;  Nathan  v.  Giles,  5  Taunt.  R. 
553  ;  Bohlen  v.  Cleveland,  5  Mason,  R.  174. 


en.  IX.]  PERSONAL   TROPERTY.  Goo 

in  its  own  territorial  limits.'    Nor  can  such  a  rule,  made 
for  the  benefit  of  innocent  purchasers  and  creditors,  he 
deemed  justly  open  to  the  reproach  of  being  founded  in 
a  narrow  or  a  selfish  policy.     But,  how  far  any  court  of 
justice  ought,  upon  its  own  general  authority,  to  inter- 
pose such  a  limitation,  independently  of  positive  legis- 
lation, has  been  thought  to  admit  of  more  serious  ques- 
tion; since  the  doctrine,  which  it  unfolds,  aims  a  direct 
blow  at  the  soundness  of  the  policy,  on  wdiich  the  gene- 
ral rule,  that  personal  property  has  no  locality,  is  itself 
founded.-     It  is  not,  indeed,  very  easy  to  reconcile  it 
with  the  doctrine  maintained  by  Lord  Loughborough, 
(which  has  been  already  cited,)^  or  with  other  cases  to 
the  same  effect.     Nor  is  it  easy  to  say,  to  what  extent 
it  may  be  pressed  in  subversion  of  the  general  rule  ; 
since  every  country  has  so  many  minute  regulations  m 
regard  to  the  transfers  of  personal  property  incorporated 
int°o  its  municipal  code,  each  of  which  may  be  propedy 
deemed  beneficial  to  its  own  government,  or  to  the  in- 
terests of  its  citizens.'^ 

§  391.  Another  case,  illustrative  of  the  doctrine,  may 
be  stated.  A  ship  belonging  to  New  York,  and  owned 
there,  was  transferred,  while  at  sea,  accordmg  to  the 
law  of  the  owner's  domicil ;  and  the  ship  subsequently 


1  See  Liven..  DisM  2-21,  p.  137,  138;  W;,  ^  ^49  ?.  159  to  p  162 ; 
HalU.  Campbell,  Cowp.  R.  208;  Hunter  ..  Potts,  ^  T.  R.  182,  U^, 
Phillips  V.  Hunter,  2  H.  Bl.  402,  405;  SilU.  Worswick,  1  H.  m.  K. 
673,  690,  691  ;  Davis  v.  Jaquin,  5  Harr.  &  Johns.  R.  100. 

2  See  Livermore,  Diss.  §  221  to  ^  223,  p.  137  to  p.  140. 

3  Ante,  §  380  ;  Sill  ..  Worswick,  1  H.  Bl.  690.  See  also  1  Kames  on 
Equity,  B.3,  eh.  8,  ^3;  Erslc.  Inst.  B.  3  tit.  2  HO  ^^-ce  ^  Br"-, 
2  Bos.  &  Pull.  229,  note  231  ;  Hunter  v.  Potts,  4  P.  R.  18-,  U-  ,  ^-"1^ 
lips  V.  Hunter,  2  H.  Bl.  402,  405. 

4  Mr.  Purge  manifestly  deems  the  decision  untenable.  3  Burge,  Oonfim. 
on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  763,  764. 

55* 


654  CONFLICT    OF   LAWS.  [CH.  IX. 

arrived  at  New  Orleans,  and  was  attached  by  creditors, 
before  any  delivery  thereof  to  the  vendee.  The  ques- 
tion was,  whether  the  attachment  overreached  the  title 
by  the  transfer.  The  Supreme  Court  of  Louisiana  held 
that  it  did  not ;  and  that  the  transfer  was  valid  to  all 
intents  and  purposes.  The  Court  took  the  distinction, 
that  the  transfer  was  complete  before  the  Louisiana 
laws  could  locally  attach  upon  it.  "  In  the  present  case 
(said  the  Court)  the  ship,  the  subject  of  the  sale,  was  a 
New  York  ship,  and  the  vendor  and  vendee  resident  in 
New  York.  If,  therefore,  according  to  the  Lex  loci 
contractus,  that  of  the  domicil  of  both  parties,  the  sale 
transfers  the  property  without  a  delivery,  it  did  eo  in- 
stanti,  or  not  at  all.  In  transferring  it.  it  did  not  work 
any  injury  to  the  rights  of  the  people  of  another  coun- 
try ;  it  did  not  transfer  the  property  of  a  thing  within 
the  jurisdiction  of  another  government.  If  two  persons 
in  any  country  choose  to  bargain,  as  to  the  property 
which  one  of  them  has  in  a  chattel  not  within  the  juris- 
diction of  the  place,  they  cannot  expect,  that  the  rights 
of  persons  in  the  country,  in  which  the  chattel  is,  will 
be  permitted  to  be  affected  by  their  contract.  But,  if 
the  chattel  be  at  sea,  or  in  any  other  place,  if  any  there 
be,  in  which  the  law  of  no  particular  country  prevails, 
the  bargain  will  have  its  full  effect,  eo  instanti,  as  to  the 
whole  world.  And  the  circumstance  of  the  chattel 
being  afterwards  brought  into  a  country,  according  to 
the  laws  of  which  the  sale  would  be  invalid,  would  not 
affect  it."  ^  But,  if  the  ship  had  been,  at  the  time  of 
the  sale,  in  New  Orleans,  and  she  had  been  attached 
before  an  actual  delivery  to  the  vendee,  the  title  of  the 
attaching  creditor  would  have  prevailed.^ 


1  Thuret  v.  Jenkins,  7  Martin,  318,  353,  351. 

2  Price  V.  Morgan,  7  Martin,  R.  707 ;  ante,  ^  386  to  ^  389. 


CH.  IX.]  PERSONAL   PROPERTY.  655 

§  392.  But,  let  us  suppose  two  persons,  each  claiming 
as  purchaser,  under  different  transfers  of  the  same  per- 
sonal property,  one  by  a  transfer  from  a  partner  in  the 
place  where  the  property  is  locally  situate,  and  another 
by  a  transfer  made  by  the  other  partner  in  the  domicil 
of  the  firm ;  and  by  the  law  of  the  latter  place  delivery 
is  not  essential  to  complete  the  transfer;  but  by  the 
law  of  the  former  it  is  ;  which  title  is  to  prevail  ?  Ac- 
cording to  the  doctrine  held  in  Louisiana,  the  title  of 
the  purchaser  in  the  place  rei  sitce  ought  to  prevail.^ 
And  that  doctrine  seems  confirmed  by  the  reasoning  in 
certain  decisions  of  the  Supreme  Court  of  Massachusetts, 
although  the  precise  point  as  to  the  conflict  of  laws  was 
not  litigated,  and  the  law  of  Massachusetts  was  sup- 
posed to  require  a  delivery  to  complete  the  title.^ 

§  393.  A  case  somewhat  different  has  been  put  by 
the  Supreme  Court  of  Louisiana.     "  If  (say  the  Court) 

A.  and  B.  be  partners  in  New  Orleans,  and  C.  purchases 
from  A.  a  quantity  of  cotton  in  the  warehouse  of  the 
firm  ;  will  his  right  thereto,  if  he  take  instant  possession 
of  it,  be  affected  by  a  sale  made  a  few  days  before  by 

B.  in  Natchez  or  Mobile  ?  Will  not  C.  be  listened  to 
in  his  own  State,  when  he  shows,  that  by  the  Lex  fori, 
by  that  of  Loci  contractus,  by  that  of  the  domicil  of  his 
A^endors,  and  of  his  own,  the  sale  and  delivery  vested 
the  property?"^  The  case  is  certainly  very  strongly 
put.  But,  after  all,  it  must  entirely  depend  upon  the 
pbint,  whether  the  prior  transfer  at  Natchez  or  Mobile 


1  Ramsay  v.  Stevenson,  5  Martin,   R.  23,  77,  78;  Thurct  v.  Jenkins, 
7  Martin,  R.  353. 

2  See  Lamb  v.  Durant,  12  Mass.  R.  54  ;  Lanfear  r.  Sumner,  17  Mass. 
R.  110  ;  ante,  ^  386,  .389,  note. 

3  Thuret  v.  Jenkins,  7  Martin,  R.  353. 


656  CONFLICT    OF    LAWS.  [CH.  IX. 

conveyed  a  perfect  title  by  the  law  of  those  places, 
without  delivery ;  and  if  so,  whether  the  Lex  rei  siice 
ought  to  prevail  against  it  ?  If  no  delivery  were  re- 
quired by  the  law  of  Louisiana  to  perfect  the  title,  the 
Natchez  or  Mobile  purchaser  would  prevail,  even  in  the 
Courts  of  Louisiana,  against  the  purchaser  in  New 
Orleans,  whatever  might  be  the  apparent  hardship  of 
the  case  under  all  the  circumstances. 

§  394.  On  the  other  hand,  let  us  take  the  case  of  a 
shipment  of  goods  from  England  to  New  Orleans,  on 
account  and  risk  of  a  merchant  domiciled  in  England, 
who  owes  debts  in  New  Orleans ;  and  a  subsequent 
transfer  of  the  bill  of  lading  in  England  to  a  purchaser, 
after  their  arrival  at  New  Orleans,  but  before  the  unlad- 
ing thereof  Could  a  creditor  of  the  shipper  at  New 
Orleans  in  such  a  case,  by  an  attachment,  oust  the  title 
of  the  purchaser,  because  there  had  been  no  delivery  to 
the  purchaser  under  the  bill  of  lading  ?  By  the  law  of 
England/  and,  indeed,  by  that  of  many  other  commer- 
cial states,  the  legal  title  of  the  goods  passes  by  the. 
mere  indorsement  and  delivery  of  the  bill  of  lading, 
without  any  actual  possession  of  the  goods  by  the  pur- 
chaser." Would  such  a  title  so  acquired  be  devested  by 
the  want  of  a  delivery  according  to  the  laws  of  Louis- 
iana ?  If  so,  it  would  most  materially  impair  the  con- 
fidence which  the  commercial  world  have  hitherto  re- 


1  Lickbarrow  v.  Mason,  2  T.  R.  63  ;  Abbott  on  Shipp.  Pt.  3,  ch.  9, 
§  16. 

-  By  the  old  French  law,  bills  of  lading  were  not  negotiable,  so  as  to 
pass  a  title  in  the  property  to  the  assignee,  but  only  gave  him  a  right  of 
action  subordinate  to  the  rights  of  third  persons.  1  Emerig.  Assur.  ch. 
11,  §  3.  By  the  Code  of  Commerce,  (art.  281,)  bills  of  lading  are  now 
negotiable,  so  as  to  pass  the  property  to  the  indorsee.  See  3  Pardessus, 
Pt.  3,  tit.  1,  ch,  3,  art.  727, 


CH.  IX.]  PERSONAL   PROPERTY.  657 

posed  in  the  universal  validity  of  the  title  acquired 
under  a  bill  of  lading.  No  opinion  is  intended  to  be 
here  expressed  on  the  point  by  the  Author ;  but  it  is 
presented,  in  order  to  show,  that  the  doctrine  is  not 
without  its  embarrassments. 

§  395.  If,  however,  the  doctrine  of  the  law  rei  slice  is 
to  prevail  over  that  of  the  law  of  the  place  of  the  trans- 
fer in  some  cases,  even  in  respect  to  movables,  what  is 
to  be  said  in  relation  to  assignments  of  choses  in  action 
or  debts  due  by  debtors,  resident  in  a  foreign  country  ? 
Would  an  attachment  before  notice  defeat  such  assign- 
ments in  favor  of  the  attaching  creditor,  although  notice 
of  the  assignment  should  be  afterwards  given  to  him 
within  a  reasonable  time  ?  ^  By  the  law  of  some  coun- 
tries, an  assignment  of  a  debt  is  good  without  any  notice 
to  the  debtor,  and  takes  effect  instanter  ;  by  the  law  of 
other  countries,  notice  is  necessary  to  perfect  the  title." 
Would  an  assignment  of  a  debt  in  the  creditor's  domicil, 
where  it  would  be  good  without  any  such  notice,  be  in- 
effectual, if  the  debtor  resided  in  a  country  where  such 
notice  would  be  necessary  ?  Suppose  an  attachment 
made  by  a  creditor,  in  the  intervening  period  between 
the  time  of  the  assignment  and  the  notice  ;  would  the 
assignment  or  the  attachment  be  entitled  to  a  prefer- 
ence ?^  By  the  Scottish  law  a  creditor  may  assign  his 
debt  to  another  person ;  but  the  ''transfer  is  not  com- 
plete, so  as  to  vest  the  title  absolutely  in  the  assignee. 


1  See  Sill  v.  Worswick,  1  H.  Bl.  691,  G93  ;  Bolilen  v.  Cleveland, 
5  Mason,  R.  174.  See  Holmes  v.  Remsen,  4  Johns.  Ch.  R.  400;  Lewis 
V.  Wallis,  Sir  Thomas  Jones,  R.  223;  1  Karnes,  Equity,  B.  3,  ch.  8, 
k  3,  p.  844. 

2  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  777,  778. 

3  See  In  Re,  Wilson,  cited  1  H.  Bl.  691,  092  ;  Post,  ^  399  a. 


668  CONFLICT    OF   LAWS.  [CH.  IX. 

until  notice  of  the  assignment,  or,  (as  the  Scotch  phrase 
is,)  until  an  intimation  of  the  assignment  is  given  to 
the  debtor.^     If,  therefore,  an  assignment  is  made,  a 


1  See  In  Re,  Wilson,  cited  1  H.  Bl.  691,  692  ;  Post,  ^  399  a  ;  Selkrig 
V.  Davis,  2  Rose,  Bank.  Cases,  315  ;  Stein's  Case,  1  Rose,  Bank.  Cases, 
481  ;    2  Bell,  Comm.  p.  21,  22,  23,  4th  edit. ;  Id.  p.  16  to  23,  5th  edit.  ; 
3  Burge,   Cotnm.   on  Col.   and  For.   Law,    Pt.  2,  ch.   20,   p.   777,    778. 
But  see  In  re  Wilson,  cited  1  H.  Bl.  691,  692.  —  I  have  stated  the  law  of 
Scotland,  as  I  understand  it  to  be  stated  in  the  opinion  of  Lord  Eldon,  in 
Selkrig  v.  Davis,  (2  Rose,  Bank.  Cas.  315  ;  2  Dov?,R.  230,  250,)  though 
it  would  seem  to  be  exactly  like  the  Massachusetts  law  stated  in  the  next 
section  (^  396.)     And  so  it  was  understood  by  Lord  Hardwicke  and  Lord 
Loughborough.     The  following  passage  from  the  judgment  of  the  latter, 
in  Sill  V.  Worswick,  (1  H.  Black.  R.  691,  692,)  gives  a  very  exact  view 
of  their  opinions.     "  A  question  of  this  nature  came  before   Lord   Hard- 
wicke very  largely  in  the  bankruptcy  of  Captain  Wilson.     With  the  lit- 
tle explanation  I  am  enabled  to  give  of  that  case,  in  which  the  Court  of 
Sessions  entirely  concurred  with  Lord  Hardwicke,  the  distinctions  will  be 
apparent.     There  were  three  different  sets  of  creditors,  who  claimed,  sub- 
ject to  the  determination  of  the   Court,  on  the   ground    that  Wilson   had 
considerable  debts  due  to  him  in  Scotland.     By  the  law  of  Scotland,  debts 
are  assignable,  and  an  assignment  of  a  debt  notified  to  the  debtor,  which 
is  technically  called  an  intimation,  makes  a  specific  lien  quoad  that  debt. 
An  assignment  of  a  debt  not  intimated  to  the  debtor,  gives  a  right  to  the 
assignee  to  demand  that  debt ;  but  it  is  a  right  inferior  to  that  of  the  cre- 
ditor who  has  obtained  his  assignment  and  intimated  it.     By  the  law  of 
Scotland  also,  there  is  a  process  for  the  recovery  of  debts,  which  is  called 
an  arrestment.     Some  of  Wilson's  creditors  had  assignments  of  specific 
debts  intimated  to  the  debtors  and  completed  by  that  intimation,  prior  to 
the  act  of  bankruptcy.     Others  had  assignments  of  debts  not  intimated 
before  the  bankruptcy.     Others  had  arrested  the  debts  due  to  him  subse- 
quent to  the  bankruptcy,  and  were  proceeding  under  those  arrestments  to 
recover  payment  of  those  debts.     The  determination  of  Lord  Hardwicke, 
and  that  of  the  Court  of  Sessions,  entirely  concurred.     The  first  class  I 
have   mentioned,  namely,  the  creditors  who   had  specific  assignments  of 
specific  debts,  intimated  to  the  debtors  prior  to  the  bankruptcy,  were  hold- 
en  by  Lord  Hardwicke  to  stand  in  the  same  situation  as  creditors  claiming 
by  mortgage  antecedent  to  the  bankruptcy.     All,  therefore,  he  would  do 
with  respect  to  them  was,  that,  if  they  recovered  under  that  decree,  they 
could  not  come  in  under  the  commission  without  accounting  to  the  other 
creditors  for  what  they  had  taken  under  their  specific  security.     With 
respect  to  the  next  class  of  creditors,  Lord  Hardwicke  was  of  opinion, 


CII.  IX.]  PERSONAL   PROPERTY.  659 

creditor  of  the  original  creditor  uiay,  before  such  in- 
timation, arrest  or  attach  the  debt  in  the  hands  of  the 
debtor,  and  will  thereby  acquire  a  preference  over  the 
assignee.  That  doctrine,  it  would  seem,  has  been  actu- 
ally applied  in  Scotland  to  debts  due  by  Scottish  debtors 
to  foreign  creditors,  and  assigned  in  the  domicil  of  the 
latter.^ 

§  396.  According  to  our  law,  a  different  doctrine 
would  prevail ;  for  an  assignment  operates,  ^^cr  se,  as  an 
equitable  transfer  of  the  debt.^  Notice  is,  indeed,  in- 
dispensable to  charge  the  debtor  with  the  duty  of  pay- 
ment to  the  assignee  ;  so  that,  if,  without  notice,  he 
pays  the  debt  to  the  assignor,  or  it  is  recovered  by  pro- 
cess against  him,  he  will  be  discharged  from  the   debt.^ 


and  the  Court  of  Sessions  were  of  the  same  opinion,  that  their  tide,  being 
a  title  by  assignment,  was  preferable  to  the  title  by  arrestment  ;  and  they 
likewise  held,  that  the  arrestments,  being  subsequent  to  the  bankruptcy, 
were  of  no  avail,  the  property  being  by  assignment  vested  in  the  assignees 
under  the  commission.  It  is  in  this  sense  that  an  expression  lias  been 
used  by  Lord  Mansfield,  in  one  or  two  cases,  in  which  his  language,  rather 
than  his  decision,  has  been  quoted  with  respect  to  the  law  of  Scotland, 
namely,  that  the  effect  of  the  assignment  under  a  commission  of  bank- 
ruptcy was  the  same  as  a  voluntary  assignment.  For  so  the  law  of  Scot- 
land treats  it,  in  contradistinction  to  the  assignment  perfected  by  intima- 
tion, and  to  an  assignment  which  the  party  might  be  compelled  to  make. 
But  it  does  not  follow  that  it  is  an  assignment  without  consideration.  On 
the  contrary,  it  is  for  a  just  consideration  ;  not,  indeed,  for  money  actually 
paid,  nor  for  a  consideration  immediately  precedins-  the  assignment.  In 
that  respect,  therefore,  it  is  a  voluntary  assignment.  But  taking  it  to  be 
so,  it  excludes,  and  is  preferable  to  all  others  attaching  ;  it  is  preferable  to 
all  the  arresters  ;  it  is  preferable  to  all  creditors  who  stand  under  the  same 
class  ;  and  to  all  who  have  not  laken  the  steps  to  acquire  a  specific  lien 
till  after  the  act  of  bankruptcy  committed." 

1  Ibid. 

2  See  ante,  ^  395,  and  note;  3  Burge,  Comm.  on  Col.  and  For.  Law, 
Pt.  2,  ch.  20,  p.  777,  778. 

3  Foster  v.  Sinkler,  4  Mass.  R.  450  ;  Blake  v.  Williams,  13  Mass.  R. 
286,  307,  308,  314  ;  Wood  v.  Partridge,  11  Mass.  R.  488  ;  Dix  v.  Cobb, 
4  Mass.  R.  508  ;  Bohlen  v.  Cleveland,  5  Mason,  R.  174  ;  Holmes  y.  Rem- 


660  CONFLICT    OF    LAWS.  [CH.  IX. 

But  an  arrest  or  attachment  of  the  debt  in  his  hands 
by  an}^  creditor  of  the  assignor,  will  not  entitle  such 
creditor  to  a  priority  of  right,  if  the  debtor  receives 
notice  of  the  assignment,  j;^';?*:/^';^^^?  lite,  and  in  time  to 
avail  himself  of  it  in  discharge  of  the  suit  against  him.^ 

§  397.  In  such  a  case  of  conflict  of  laws,  the  diffi- 
culty of  applying  any  other  than  the  general  principle, 
that  movables  are  transferable  according  to  the  law  of 
the  domicil  of  the  owner,  is  apparent.  Let  us  take  the 
case  of  a  Massachusetts  creditor,  assigning  in  that 
State  a  debt  contracted  there,  and  due  to  him  by  a 
person  then  domiciled  in  Scotland.  The  transfer  is  in 
equity  complete  in  the  place  where  it  is  made,  without 
notice ;  but  in  the  place  where  the  debt  is  due,  it  is  not 
complete  without  notice.  To  give  effect,  in  such  a  case, 
to  the  law  of  Scotland,  in  opposition  to  that  of  Massa- 
chusetts, would  be  to  give  a  locality  to  the  debt,  and 
to  subject  it  to  the  exclusive  operation  of  the  law  of 
the  debtor's  domicil.  And  it  might  involve  this  most 
serious  difficulty,  that  if  the  debtor  were  afterwards 
found  in  Massachusetts,  or  in  any  other  country  than 
Scotland,  he  might  be  compelled  to  pay  the  debt  to  the 
assignee,  although  it  might  have  been  recovered  from 
him  in  Scotland  by  a  creditor,  in  a  proceeding  by  at- 
tachment of  the  debt  in  his  hands,  he  having  had  no- 
tice of  the  assignment,  ijcndcntc  lite. 

§  398.  The  reasoning  of  Lord  Konyon,  in  a  celebrated 
case,-  would  certainly  lead   to   the   conclusion  that  an 


sen,  4  Johns.  Ch.  R.  460,  486.  See  3  Burge,  Comm.  on  Col.  and  For. 
Law,  Pt.  2,  ch.  20,  p.  777,  778 ;  Alair  v.  Schenck,  3  Hill,  N.  Y.  R.  228. 
But  see  Story  on  Equity  Jurisp.  ^  421  a,  h  1035  a. 

1  Ibid. 

2  Hunter  v.  Potts,  4  T.R.  182,  192.  See  Liverm.  Diss.  p.  140  to  p.  159  ; 
Id.  p.  159,  ^  249.     See  ante,  ^  383. 


CH.  IX.]  PERSONAL    PROPERTY.  661 

assignment  of  personal  property,  whether  it  were  of 
goods  or  debts,  according  to  the  law  of  the  owner's 
domicil,  would  pass  the  title  in  whatever  country 
it  might  be,  unless  there  were  some  prohibitory 
law  in  that  country.  Plis  language  is  :  "  Every  person 
having  property  in  a  foreign  country,  may  dispose  of 
it  in  this ;  though,  indeed,  if  there  be  a  law  in  that 
country,  directing  a  particular  mode  of  conveyance, 
that  ought  to  be  adopted.  But  in  this  case  no  law  of 
that  kind  is  stated ;  and  we  cannot  conjecture  that  it 
is  not  competent  to  the  bankrupt  himself,  prior  to  his 
bankruptcy,  to  have  disposed  of  his  property  as  he 
pleased."  The  same  doctrine  is  maintained  by  Lord 
Hardwicke  and  Lord  Loughborough.  And  all  these 
learned  Judges  apply  it  equally  to  the  cases  of  assign- 
ments of  goods  and  debts,  to  voluntary  assignments  by 
the  party,  and  also  (as  we  shall  more  fully  see  here- 
after) to  assignments  by  operation  of  law,  as  in  cases  of 
bankruptcy.  The  question  of  prior  notice,  or  intima- 
tion, does  not  seem  to  have  been  thought  by  them  ma- 
terial; for  they  treat  the  transfer  as  complete,  from  the 
time  of  the  assignment;  and,  if  that  has  priority  in 
point  of  time,  over  an  arrest  or  attachment  of  the  pro- 
perty, it  is  to  prevail.  The  law  of  England  would  cer- 
tainly give  effect  to  such  an  assignment  of  any  goods  or 
debts  in  England,  w^hich  were  assigned  by  the  owner 
in  a  foreign  country.^ 


'  See  Solomons  v.  Ross,  and  other  cases  sited,  1  H.  Bl.  131,  132,  note; 
Sill  u.  VVorsvvick,  1  H.  Bl.  665,690,691;  Inre  Wilson,  cited  ibid.  p.  691, 
692,  693;  Lewis  v.  WaWis,  T.  Jones,  R.  223.  See  also  Selkrig  v.  Da- 
vis, 2  Rose,  Bank.  Cas.  97;  S.  C.  Id.  291,  315,  316,  317;  Kannes  on 
Equity,  B.  3,  ch.  8.  ^  4  ;  Scott  v.  Allnutt,  2  Dow  &  Clark,  R.  404,  412 ; 
Liverm.  Diss.  p.  159  ;  Ogden  v.  Saunders,  12  Wheat.  R.  364,  365.  See 
also  Merlin,  R6pert.  Faillil6,  p.  412,  414,  415. 
CONFL.  56 


662  CONFLICT    OF   LAWS.  [CH.  IX. 

§  399.  Lord  Karnes,  in  commenting  on  the  subject, 
says :  "  That,  considering  a  debt  as  a  subject  belonging 
to  the  creditor,  the  natural  fiction  would  be  (if  any  were 
admissible)  to  place  it  with  the  creditor,  as  in  his  pos- 
session, upon  the  maxim,  3Iohilia  non  hahent  sequelam. 
Others  are  more  disposed  to  place  it  with  the  debtor."  ^ 
But,  in  fact,  a  debt  is  not  a  corpus  capable  of  local  posi- 
tion, but  purely  ^jiis  incorporale?  And,  therefore,  where 
the  debtor  and  creditor  live  in  different  countries,  and 
are  subjected  to  different  laws.  Lord  Kames  thinks  the 
law  of  the  domicil  of  the  creditor  ought  to  prevail.^ 


1  Kames  on  Equity,  B.  3,  ch.  8,  ^  ^:.  See  Morrison's  Case,  4  T.  R. 
185;  IH.  B1.677;  ante,  ^362;  Rodenburg,  De  Divers.  Stat.  tit.  2, 
ch.  5,  §  16  ;  2  Boullenois,  Appx.  p.  47,  48,  49  ;  ante,  ^  377. 

2  See  ante,  ^  362,  376,  384;  3  Burge,  Coram,  on  Col.  and  For.  Law, 
Pt.  2,  ch.  20,  p.  777,  778,  779. 

3  On  this  point  I  cannot  do  better  than  insert  a  passage  from  Mr.  Liver- 
more's  Dissertations  (p.  162,  i§  251,)  illustrative  of  the  same  principles. 
"  It  was  formerly  doubted  by  some,  whether  personal  actions  should  be 
considered  as  movables,  and  whether  they  should  not  be  considered  to 
have  a  location  in  the  domicil  of  the  debtor.  But  the  common  opinion 
seems  to  be  well  settled,  that,  considered  actively,  and  with  respect  to  the 
interest  of  the  creditor  and  his  representatives,  they  must  be  considered  as 
attached  to  the  person  of  the  creditor ;  and  this,  although  the  payment  of 
the  debt  is  secured  by  an  hypothecation  upon  an  immovable  property. 
Such  is  the  doctrine  of  Dumoulin.  Nomina  et  jura,  et  quajcumque  incor- 
poralia,  non  circumscribantur  loco,  et  sic  non  opus  est  accedere  ad  certum 
locum.  Tum  si  hsec  jura  alicubi  esse  censerentur,  non  reputarentur  esse 
in  re  pro  illis  hypothecata,  nee  in  debitoris  persona,  sed  magis  in  persona 
creditoris,  in  quo  activ6  resident,  et  ejus  ossibus  inhaerent.  Molin.  Oper. 
Comm.  ad  Consuet.  Paris.  Tit.  1,  De  fiefs.  ^  1,  n.  9,  p.  56,  57.  So  also 
Cassaregis,  after  saying  that  movables  are  attached  to  the  person  of  the 
owner,  and,  at  his  death,  will  be  distributed  according  to  the  laws  of  his 
domicil,  proceeds  to  consider,  what  will  be  the  rule  with  respect  to  debts, 
and  determines,  that  they  follow  the  person  of  the  creditor.  An  ita  dicen- 
dum  de  nominibus  debiiorum,  actionibus,  ac  juribus,  qua3  bona  neque,  di- 
cuntur  mohilia,  neque  immobilia,  sed  tertiam  speciem  bonorum  componunt, 
et  dicunliir  incorporalia'?  Et  respondeo  aflirmative  ;  nam  slatutum  bene 
comprehendit  nomina  debitoium,  licet  forensium,  quia  eorum  obligationes 


CH.  IX.]  PERSONAL   PROPERTY.  663 

He  then  adds :  "  When  the  creditor  makes  a  voluntary 
conveyance,  it  is  to  be  expected,  that  he  should  speak 
in  the  style  and  form  of  his  own  country ;  and,  conse- 
quently, that  the  rule  of  his  own  country  should  be  the 
rule  here.  In  a  word,  the  will  of  a  proprietor,  or  of  a 
creditor,  is  good  title  jure  gentium.^  that  ought  to  be 
effectual  everywhere.  Thus,  an  assignment  made  by  a 
creditor  in  Scotland,  according  to  our  forms,  of  a  debt 
due  to  him  by  a  person  in  a  foreign  country,  ought  to 
be  sustained  in  that  country,  as  a  good  title  for  de- 
manding payment ;  and  a  foreign  assignment  of  a  debt 
due  here,  regular  according  to  the  law  of  the  country, 
ought  to  be  sustained  by  our  judges."^  In  another 
place  he  adds :  "An  equitable  title,  in  opposition  to  one 
that  is  legal,  can  never  found  a  real  action  {actio  in  rem.) 
It  cannot  have  a  stronger  effect  than  to  found  an  action 
against  the  proprietor  to  grant  a  more  formal  right,  or, 
in  his  default,  that  the  Court  shall  grant  it.  But  in 
the  case  of  a  debt,  where  the  question  is  not  about  pro- 
perty, but  payment,  an  equitable  title  coincides,  in  a 
good  measure,  with  a  legal  title.  An  assignment  made 
by  a  foreign  creditor,  according  to  the  formalities  of  his 
country,  will  be  sustained  here,  as  a  good  title  for  de- 
manding payment  from  the  debtor ;  and  it  will  be  sus- 
tained, though  informal,  provided  it  be  good  jure  gen- 
tium ;  that  is,  provided,  that  the  creditor  really  granted 
the  assignment.     Such  effect  hath  an  equitable  title  j 


non  circurascribuntur  locis,  ideoque  attenditur  statutum,  cui  subjectus  est 
testator.  Et  haec  verier  est  sententia  ;  nam  debitorum  iiomina,  lanquam 
personae  cohaireniia,  debent  regulari  secundum  slatuta  loci,  cui  creditor 
est  subjectus."  Casaregis,  In  Rubr.  Stat.  Civ.  Genua?  de  Success,  ab 
Intest.  n.  64,  65,  Tom.  4,  p.  42,  43. 
1  Karnes  on  Equity,  B.  3,  eh.  8,  ^  4. 


664  CONFLICT    OF   LAWS.  [CH.  IX. 

and  a  legal  title  can  have  no  stronger  effect."  ^  This 
is  in  perfect  coincidence  with  the  law  of  England  and 
America.^ 

§  399  «.  Questions  may  arise  upon  the  conflict  of 
laws,  where  an  assignment  is  validly  made  of  personal 
property  in  one  country  by  the  owner  thereof,  and  the 
property  is  at  the  time  of  the  assignment  locally  in  an- 
other country,  by  whose  laws  it  is  liable  to  be  attached 
by  a  trustee  process  or  garnishment;  and  an  attach- 
ment is  actually  made  by  a  creditor  of  the  assignor  be- 
fore notice  of  the  assignment.  In  such  a  case,  (as  we 
have  seen,)^  if  notice  thereof  is  given  before  judgment 
in  the  suit,  the  assignee  will  be  entitled  to  maintain  his 
priority  of  title.  But,  suppose  the  Lex  fori  enforces  a 
different  rule,  and  will  in  such  a  case  entitle  the  cre- 
ditor to  a  priority  of  right,  and  a  judgment  against  the 
property  \  will  that  judgment  conclude  the  assignee,  if 
the  property  is  afterwards  found  in  the  country,  where 
the  assignment  is  made,  by  whose  laws  the  maxim  pre- 
vails. Qui  prior  est  in  tempore,  potior  est  in  jure  ?  Sup- 
pose the  property  to  be  found  in  a  different  foreign 


1  Kames  on  Equity,  B.  3,  ch.  8,  ^  4,  sub  finem.  See  also  Huberus, 
De  Confl.  Leg.  Lib.  I,  tit.  3,  ^  9, 

2  See  Holmes  v.  Remsen,  4  Johns.  Cli.  R.  460,  486  ;  S.  P.  20  Johns. 
R.  229,  267  ;  Moreton  v.  Milne,  6  Binn.  R.  353,  361,  369;  Blake  v.  Wil- 
liams, 6  Pick.  R.  286,  307,  314.  — It  is  a  very  different  question,  when 
an  assignment  of  a  debt  is  lawfully  made,  whether  the  assignee  can  sue  the 
debtor  in  his  own  name  ;  or  must  sue  in  the  name  of  the  assignor.  That 
point  has  been  sometimes  thought  to  belong  to  the  mode  of  remedy, 
rather  than  tlie  right,  and  of  course  is  to  be  governed  by  the  lex  fori.  See 
3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  777,  778;  and 
see  also  Wolff  v.  Oxholm,  0  Maule  &  Selw.  ;92,  93.  But  see  Alivon  v. 
Furnival,  1  Cromp.  Mees.  &  Rose.  277,  296  ;  post,  ^  420,  566. 

3  Ante,  ^  390.  See  also  Richardson  v.  Leavitt,  I  Louis.  Ann.  R.  430  ; 
Merchants  Bank  v.  Bank  of  United  States,  2  Id.  659;  Chewning  v.  John- 
son, 5  Id.  678,  710. 


CH.  IX.]  PERSONAL   PROPERTY.  665 

countiy,  and  the  assignee  should  sue  for  the  same  in 
the  courts  thereof;  what  law  ought  to  be  regarded  in 
ascertaining  the  title  ;  the  law  of  the  place  of  the  as- 
signment, or  that  of  the  judgment  ?  Will  it  make  any 
difference,  whether  the  assignee  might  or  might  not 
have  intervened  for  his  right  in  the  first  suit  before 
judgment  ?  Or,  that  he  happened  to  be  in  the  country, 
where  the  judgment  was  rendered  at  the  time  of  the 
rendition  thereof?  These  are  questions  more  easily 
put  than  answered ;  and  will  well  deserve  the  attention 
of  courts  of  justice,  when  they  are  called  upon  to  en- 
force the  rights  of  creditors  in  the  local  tribunals,  against 
the  prior  claims  of  title  of  assignees  under  assignments 
of  debts,  or  other  personal  property,  made  in  a  foreign 
country.^ 

§  400.  But  where  an  attachment  or  garnishment  has 
been  made  by  a  creditor  according  to  the  local  law  m 
sU(Zf  before  any  assignment  by  the  party,  or  by  opera- 
tion of  law  in  invitum,  there  is  room  for  a  distinction ; 
and  it  may  well  be  held,  that  in  such  a  case,  the  attach- 
ing creditor  is  entitled  to  a  priority  over  the  assignee. 
For,  in  such  case,  the  rule  may  justly  prevail,  Qui  prior 
est  in  tempore,  potior  est  in  jure;  and  the  creditor  is 
equitably  entitled  to  the  benefits  of  his  diligence.  A 
case  to  this  effect  is  reported  by  Casaregis,  and  reasoned 
out  with  great  force  upon  general  principles.  The  doc- 
trine does  not,  indeed,  seem  in  its  nature  susceptible  of 
any  well-founded  doubt ;  and  it  is  in  entire  conformity 
to  the  principles  on  the  same  subject  recognized  both 
in  England  and  in  America.- 


1  Ante,  ^  395,  396. 

2  Mr.  Livermore,in  his  Dissertations,    (p.  159  to   162,)  has  given  the 
case,  and  the  reasoning  of  Casaregis  at  large.     See  Selkrig  v.  Davis, 

56* 


666  CONFLICT    OF   LAWS.  [CH.  IX. 

[  §  400  a.  The  Courts  of  Louisiana  have  discussed 
very  frequently,  of  late,  the  question  of  the  validity  of 
foreign  assignments.  In  one  case  it  was  determined, 
that  an  assignment  of  personal  property  for  the  prefer- 
ence of  certain  creditors,  if  valid  by  the  law  of  the 
place  where  made,  and  where  all  the  parties  to  the  as- 
signment resided,  would  protect  the  property,  if  after- 
wards found  in  Louisiana,  from  the  subsequent  attach- 
ment of  a  creditor  residing  in  the  State  of  the  assign- 
ment.^ And  this  was  confirmed  in  a  later  case,^  where 
it  was  also  held  that  the  same  rule  applied  to  real  estate 
situated  in  Louisiana,  and  which  had  been  assigned  by 
the  owner  living  in  a  foreign  State.  So,  where  property 
situated  in  one  State,  is  there  made  the  subject  of  an 
order  of  Court  having  jurisdiction,  and  is  afterwards 
forcibly  or  fraudulently  withdrawn  and  removed  into 
another  State,  the  Courts  of  the  latter  State  will  not 
enforce  an  attachment  against  such  property  in  favor  of 
third  persons,  but  will  order  a  prompt  restitution,  or 
make  such  decree  as  will  prevent  the  acquisition  of 
any  rights  by  the  attaching  creditor.^] 

§  401.  There  are  some  other  matters  connected  with 
this  subject,  which  deserve  attention.  Upon  the  sale 
of  goods  on  credit,  by  the  law  of  some  commercial 
countries,  a  right  is  reserved  to  the  vendor  to  retake 
them,  or  he  has  a  lien  upon  them  for  the  price,  if  un- 
paid ;  and,  in  other  countries,  he  possesses  a  right  of 


2  Rose,  Bank.  Cases,  291,  310  ;  Casaregis,  II  Cambista  Instruito,  cap.  7, 
Tom.  3,  p.  64. 

1  Richardson  v.  Leavitt,  1  Louis.  Ann.  R.  430. 

2  Merchants  Bank  v.  Bank  of  United  States,  2  Louis.  Ann.  R.  659. 
And  see  Chewning  v.  Johnson,  5  Louis.  Ann.  R.  678. 

^  Paradise  u.  Farmers  and  Merchants  Bank  of  Memphis,  5  Louis.  Ann. 
R.  710. 


CH.  xl]  personal  property.  667 

stoppage  in  transitu  only  in  cases  of  insolvency  of  the 
vendee.i  The  Roman  law  did  not  generally  consider 
the  transfer  of  property  to  be  complete  by  sale  and 
delivery  alone,  without  payment  or  security  given  for 
the  price,  unless  the  vendor  agreed  to  give  a  general 
credit  to  the  purchaser ;  but  it  allowed  the  vendor  to 
reclaim  the  goods  out  of  the  possession  of  the  purchaser, 
as  being  still  his  own  property.  Quod  vendidi  (say  the 
Pandects)  non  alitcr  Jit  accijyieniis,  qiiam  si  aid  p'etium 
nobis  solutiim  sit,  aut  satis  eo  nomine  datum,  vet  etiam  fidem 
hahuerimiis  emptori  sine  idld  saiisfactione}  The  present 
Code  of  France  gives  a  privilege,  or  right  of  revendica- 
tion,  against  the  purchaser  for  the  price  of  goods  sold, 
so  long  as  they  remain  in  the  possession  of  the  debtor.^ 
In  respect  to  ships,  a  privilege  is  given  by  the  same 
Code  to  certain  classes  of  creditors  (such  as  vendors, 
builders,  repairers,  mariners,  &c.)  upon  the  ship,  which 
takes  effect  even  against  subsequent  purchasers,  until 
the  ship  has  made  a  voyage  after  the  purchase.'^  And, 
by  the  general  maritime  law,  acknowledged  in  most,  if 
not  in  all,   commercial   countries,  hypothecations  and 


1  Abbott  on  Shipp.  Pt.  1,  ch.  1,  ^  6 ;  Id.  Pt.  3,  ch.  9,  ^  2  ;  1  Domat, 
Civil  Law,  B.  1,  tit.  2,  §  3,  n.  1,  2  ;  Id.  ^  12,  n.  13 ;  Id.  B.  3,  tit.  1,^5, 
n.  3,  4,  note  ;  Merlin,  R6pert.  Revendication,  ^  1,  n.  8  ;  Code  Civil,  art. 
2102 ;  4  Pardessus,  Droit  Comm.  art.  939,  940,  1204  ;  2  Kent,  Comra. 
Lect.  39,  p.  540,  3d  edit.  ;  ante,  ^  322,  to  §  328  ;  3  Burge,  Comm.  on 
Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  770. 

2  Digest,  Lib.  18,  tit.  1,  1.  19  ;  Id.  Lib.  14,  tit.  4, 1.  5,  n.  18.  — As  to 
liens  for  unpaid  purchase-money  on  lands,  see  ante,  ^  322  b,  and  Gilman 
V.  Brown,  1  Mason,  R.  219,  220,  221. 

3  Code  Civil,  art.  2102,  n.  4. 

4  Code  of  Commerce,  art.  192,  193;  3  Pardessus,  Droit  Comm.  art. 
942,  950.  See  also  1  Valin,  Comm.  340 ;  Abbott  on  Shipp.  Pt.  1,  ch.  1, 
§6. 


668  CONFLICT    OF   LAWS.  [CH.  IX. 

liens  are  recognized  to  exist  for  seamen's  wages,  and 
for  repairs  of  foreign  ships,  and  for  salvage.^ 

§  402.  The  question,  then,  naturally  arises,  whether, 
if  such  privileges,  hypothecations,  or  liens,  are  recog- 
nized in  the  country,  where  the  contracts,  or  acts,  which 
give  rise  to  them,  are  made,  they  are  to  be  deemed 
obligatory  in  every  other  place,  where  the  property  may 
be  found,  even  against  innocent  purchasers,  or  against 
creditors  who  would  otherwise,  by  the  law  of  m  sitce, 
have  a  preference  of  right  ?  Would  an  attachment,  for 
instance,  of  foreign  creditors  prevail  against  them  in 
the  tribunals  of  the  domicil  of  such  creditors  ?  Upon 
the  general  principles,  already  stated,  as  to  the  operation 
of  contracts,  and  the  rule  that  movables  have  no  local- 
ity, it  would  seem  that  these  privileges,  hypothecations 
and  liens,  ought  to  prevail  over  the  rights  of  subsequent 
purchasers  and  creditors  in  every  other  country.  That 
having  once  attached  rightfully  in  reniy  they  ought  not 
to  be  displaced  by  the  mere  change  of  local  situation  of 
the  property.^  This  doctrine  was  in  some  measure 
recognized  in  an  important  case  in  England,  where  the 
right  of  stoppage  in  transitu  was  supposed  to  depend 
upon  doctrines  of  foreign  law,  materially  different  from 
the  law  of  England.  The  right  conferred  by  the  foreign 
law  was  upheld  against  the  claims  of  English  creditors, 
under  circumstances  of  that  case,  which  were  somewhat 
peculiar,  the  lien  having  been  given  by  the  foreign  law, 
and  enforced  in  the  foreign  country,  so  far  as  to  compel 
the  master,  who  was  in  possession  of  the  goods,  to  re- 


1  See  ante,  ^  322  a,  ^  323  ;  Conflit  des  Lois,  Revue  Etrang.  et  Franc. 
Tom.  6,  1840,  ^  33,  p.  227,  228. 

2  See  Livermore,  Dissert,  p.  159,  ij  249  ;  ante,  ^  322. 


CH.  IX.]  PERSONAL   PROPERTY.  669 

cognize  it,  and  to  agree  to  hold  the  property  subject 
to  it.i 

§  402  «.  Nevertheless,  as  we  have  already  seen,  there 
is  no  inconsiderable  conflict  of  opinion  among  foreign 
jurists,  and  even  among  domestic  jurists,  as  to  the  ex- 
tent, to  which  the  right  of  privilege  or  priority  ought  to 
be  allowed  in  cases,  where  such  privilege  or  priorit}^  has 


1  Inglis  V.  Underwood,  1  East,  R,.  515  ;  Abbott  on  Shipp.  Pt.  3,  ch.  9, 
§  3.  On  that  occasion.  Lord  Ken  yon  said  :  "  The  decision  in  this  case 
will  not  at  all  trench  upon  the  general  rule  of  law,  respecting  the  right  of 
stopping  goods  in  transitu  :  but  giving  the  plaintiffs  the  full  benefit  of  the 
argument,  that  the  delivery  of  the  goods  on  board  a  chartered  ship  was  a 
delivery  to  the  bankrupt,  still  the  circumstance  of  the  Russian  ordinance, 
set  forth  in  the  case,  varies  it  very  importantly,  and  takes  it  out  of  the 
general  rule.  By  that  law,  the  consignors,  under  the  circumstances 
stated,  had  a  right  to  repossess  themselves  of  their  goods;  and  they 
did  so  in  effect ;  not  indeed  by  actually  taking  them  out  of  the  ship  on 
board  of  which  they  were  laden,  or  by  instituting  legal  process  for  the 
recovery  of  them  ;  but  having  a  right  so  to  do,  which  it  became  unne- 
cessary to  exert,  because  it  was  in  the  first  instance  acknowledged 
and  submitted  to  by  the  captain,  in  whose  possession  the  property  was, 
they  imposed  terms  upon  him,  that  he  should  sign  bills  of  lading  to 
their  order,  upon  his  compliance  with  which  they  suffered  the  cargo  to 
proceed  to  the  place  of  its  destination,  disposable  there  as  events  might 
turn  out.  The  goods  are  therefore  sent  with  the  condition  attached  to 
them.  The  law  of  Russia  in  this  respect  is  a  very  equitable  law  ;  and  I 
have  often  lamented,  that  our  own  code  was  defective  in  the  same  par- 
ticular. For  every  man  contracting  to  supply  another  with  goods  acts  on 
the  presumption,  that  that  other  is  in  a  condition  to  pay  for  them  ;'and 
therefore  when  the  condition  of  the  consignee  is  altered  at  the  time  of  the 
delivery,  and  he  is  insolvent,  and  no  longer  capable  of  performing  his  part 
of  the  contract,  honesty  and  good  faith  require  that  the  contract  should  be 
rescinded.  However,  the  contrary  has  been  settled  to  be  law,  unless  the 
consignor  stop  the  goods  in  transitu  before  they  get  into  the  consignee's 
possession.  But  this  being  a  transaction  into  a  foreign  country,  where  a 
more  equitable  law  in  this  respect  prevails,  I  am  far  from  being  desirous 
of  limiting  its  operation  ;  and  for  the  reasons  before  given,  I  think  that  the 
consignors  have  substantially  availed  tiiemselves  of  it  ;  and  that  the  de- 
fendant, by  delivering  the  goods  to  their  order,  has  done  no  more  than  he 
was  bound  to  do." 


670  CONFLICT    OF  LAWS.  [CH.  IX. 

arisen  under  foreign  laws,  against  subsequent  purcha- 
sers/ or  against  creditors  in  the  country,  where  the 
property  is  subsequently  found.  Whether  an  excep- 
tion would  be  allowed  generally  in  favor  of  maritime 
liens  and  privileges,  and  priorities,  founded  upon  the 
public  policy  of  giving  them  full  effect  as  matters  of 
public  convenience  and  interest,  founded  upon  the 
necessities  and  exigencies  of  commerce  and  naval  in- 
tercourse, may  admit  of  question.  It  is  highly  probable, 
however,  that  most,  if  not  all,  commercial  nations  will 
adopt  such  an  exception,  upon  the  principle  of  comity 
sub  miituce  vicissitudhiis  oUentu.  Indeed,  upon  any  other 
system,  bottomry  bonds,  respondentia  bonds,  and  other 
maritime  hypothecations,  would  constitute  so  unsafe  a 
security,  that  no  merchant  abroad  would  venture  to 
lend  his  money  upon  so  fragile  a  title,  which  might  be 
undermined  or  destroyed  by  a  local  law,  wholly  un- 
known and  unsuspected  by  him. 

§  403.  Hitherto  we  have  been  considering  cases  of 
voluntary  transfers  inter  vivos  ;  and  we  are  now  natu- 
rally led  to  the  consideration  of  involuntary  transfers 
by  operation  of  law  in  the  domicil  of  the  owner,  such 
as  are  statutable  transfers  under  the  Bankrupt  or  In- 
solvent Laws  of  the  country  of  his  domicil.  The  great 
question  here  is,  whether  an  assignment  under  such 
laws  has  a  universal  operation,  so  as  to  transfer  the 
movable  property  of  the  bankrupt  or  insolvent  in  all 
other  countries,  to  the  same  extent  as  a  voluntary 
transfer  made  by  him  would,  and  thus  to  withdraw  it 
from  the  process  of  the  local  foreign  laws,  by  way  of 
arrest,  attachment,  or  otherwise,  issued  in  favor  of  the 


1  Ante,  ^  322  to  §  328 ;  post,  ^  424  to  ^  528. 


CH.  IX.]  PERSONAL   PROPERTY.  671 

foreign  creditors  in  the  country  where  the  movable 
property  is  situate.  This  question  has  been  very 
gravely  discussed  both  at  home  and  abroad ;  and  the 
Courts  of  England  and  the  Courts  of  America  have 
arrived  at  opposite  conclusions  respecting  it.  The 
Courts  of  the  former  country  uniformly  maintain  the 
doctrine  of  the  universal  operation  of  such  an  assign- 
ment upon  all  movable  property,  wherever  it  may  be 
locally  situate  at  the  time  of  the  assignment.  Many 
(but  not  all)  of  the  Courts  of  the  latter  country  confine 
the  operation  of  such  an  assignment  to  the  territory 
where  the  party  is  declared  bankrupt  or  insolvent. 
The  question  is  worthy  of  a  very  full  examination,  and 
a  summary  of  the  reasoning  on  each  side  of  the  ques- 
tion, will,  therefore,  be  here  brought  under  review. 

§  404.  Those,  who  maintain,  that  assignments  under 
Bankrupt  or  Insolvent  laws  are,  and  ought  to  be,  of 
universal  operation  to  transfer  movable  property,  in 
whatever  country  it  may  be  locally  situate,  adopt  rea- 
soning to  this  effect.^  The  general  principle  certainly 
is,  that  personal  property  has  no  locality  ;  but,  that,  as 
to  its  disposition,  it  is  subject  to  the  law,  which  governs 
the  person  of  the  owner,  that  is  to  say,  it  is  subject  to 
the  law  of  his  domicil."  There  can  be  no  doubt,  that 
the  owner  may,  by  a  voluntary  assignment  or  sale, 
made  according  to  the  law  of  his  domicil,  transfer  the 
title  to  any   person,   wherever  the  property  may  be 


^  Mr.  Bell  has  examined  this  subject  with  his  usual  ability  and  accu- 
racy, and  vindicated  at  large  the  propriety  of  the  rule,  giving  universal 
effect  to  assignments  in  Bankruptcy.  See  2  Bell,  Comm.  B.  8,  ch.  2, 
^  1266,  p.  684  to  p.  690,  4th  edit.  ;  Id.  p.  680  to  p.  691,  5th  edit. 

2  Sill  V.  Worswick,  1  H.  Black.  690,  691  ;  Hunter  v.  Potts,  4  T.  R. 
182. 


672  CONFLICT    OF   LAWS.  [CH.    IX. 

locally  situate.'  Now,  an  assignment  under  the  bank- 
rupt laws  of  his  domicil  is,  by  operation  of  law,  a  valid 
transfer  of  all  the  bankrupt's  property,  as  valid  as  if 
made  personally  by  him.^  The  law  upon  his  bankruptcy 
transfers  his  whole  property  to  the  assignees,  who  thus 
become  lege  loci,  the  lawful  owners  of  it,  and  entitled  to 
administer  it  for  the  benefit  of  all  his  creditors.  The 
mode  of  transfer  is  wholly  immaterial.  The  only  proper 
question  is,  whether  it  is  good  according  to  the  law  of 
his  domicil.^     This  rule  is  admitted  and  applied  in  all 


1  In  Re,  Wilson,  cited  1  H.  Black,  691,  692. 

2  Sill  V.  Worswick,  1  H.  Black.  691,  692;  Hunter  v.  Potts,  4  T.  R. 
182,  192;  Phillips  v.  Hunter,  2  H.  Black.  402,  405  ;  Goodwin  v.  Jones, 
3  Mass.  R.  517.  —  "  It  is  a  proposition,"  said  the  Court,  in  Phillips  v. 
Hunter,  2  H.  Black.  402,  403,  "  not  to  be  disputed,  that  previous  to  the 
bankruptcy  the  Bankrupts  themselves  might  have  transferred  or  assigned 
this  property,  though  abroad,  as  ahsolutely  as  if  it  had  been  in  their  ovi'n 
tangible  possession  in  this  country  ;  and  it  seems,  that  the  assignees  under 
their  commission  were  entitled,  by  operation  of  law,  to  do  with  it  after  the 
bankruptcy,  what  the  Bankrupts  themselves  might  have  done."  In  Potts 
V.  Hunter,  (4  T.  R.  182,  192,)  the  Court  said  ;  "  The  only  question 
here  is,  whether  or  not  the  property  in  that  Island  (Rhode  Island)  passed 
by  the  assignment,  in  the  same  manner  as  if  the  owner  (the  Bankrupt) 
had  assigned  it  by  his  voluntary  act.  And  that  it  does  so  pass  cannot  be 
doubted,  unless  there  were  some  positive  law  of  that  country  to  prevent 
it."  "  On  the  general  reason  of  the  thing,  if  there  be  no  positive  decision 
to  the  contrary,  no  doubt  could  be  entertained,  but  that  by  the  laws  of  this 
country,  uncontradicted  by  the  laws  of  any  other  country,  where  personal 
property  may  happen  to  be,  the  commissioners  of  a  Bankrupt  may  dispose 
of  the  personal  property  of  a  Bankrupt  here,  though  such  property  be  in  a 
foreign  country."  In  Goodwin  v.  Jones,  (3  Mass.  R.  517,)  Mr.  Chief 
Justice  Parsons  said  ;  "  The  assignment  of  a  Bankrupt's  effects  may  be 
considered  as  his  own  act,  as  it  is  in  the  execution  of  laws  by  which  he  is 
bound,  he  himself  being  competent  to  make  such  an  assignment,  and 
voluntarily  committing  the  act  which  authorized  the  making  of  it."  See 
also  Livermore's  Dissert,  p.  159,  ^  249,  250.  The  same  doctrine  was 
aflirmed  by  Lord  Mansfield  in  Wadham  v.  Marlow,  cited  1  H.  Black.  437, 
438,  439,  note  ;  S.  S.  and  S.  P.  8  East,  R.  314,  316,  note  z, 

3  Ante,  ^  399,  420,  .566. 


CH,  IX.]  PERSONAL   PROPERTY.  673 

cases  of  the  succession  to  movable  property  in  cases  of 
intestacy,  where  the  property  passes  by  mere  operation 
of  law,  in  the  same  manner,  and  to  the  same  extent,  as 
where  it  passes  by  the  voluntary  act  or  transfer  inter 
vivos  of  the  owner,  or  where  it  passes  by  his  last  will  or 
testament.^ 

§  405.  The  same  principle  applies  with  equal  force 
and  general  convenience  to  the  disposition  of  the  effects 
of  bankrupts ;  for  the  just  and  equal  distribution  of  all 
the  funds  of  that  class  of  debtors  becomes  the  common 
concern  of  the  whole  commercial  world.  In  cases  of 
intestacy,  it  is  presumed  to  be  the  intent  of  the  intes- 
tate, that  his  movables,  which  by  fiction  of  law  have 
no  locality,  independent  of  his  person,  should  be  brought 
home,  and  distributed  according  to  the  law  of  his  dom- 
icil.  It  is  equally  to  be  presumed,  as  the  understanding 
of  the  commercial  world,  that  the  bankrupt's  effects 
should  follow  his  person,  and  be  distributed  in  the  place 
of  his  domicil,  where  the  credit  was  bestowed,  or  the 
payment  expected  according  to  the  laws  thereof.^  An 
assignment  under  the  bankrupt  laws  ought  to  be  deemed 
in  all  respects  of  equal  force  and  validity  with  a  volun- 
tary assignment  of  the  party ;  for,  by  implication  of 
law,  he  consents  to  all  transfers  made  of  his  property 
according  to  the  law  of  his  domicil.  Great  inconveni- 
ences would  follow  from  a  different  proceeding.  Differ- 
ent commissions  might  issue  in  different  countries,  and 
have  concurrent  operation  sinml  ct  semel  in  different  coun- 
tries. And,  thus,  it  would  be  in  the  power  of  the  bank- 
rupt to  throw  his  property  under  either  commission  at 


1  Sill  V.  Worswick,  1  H.  Black.  690,  691. 

2  Holmes  V.  Remsen,  4  Johns.  Ch.  R.  460,  470  ;  Hunter  v.  Potts,  4  T. 
R.  182,  192. 

CONFL.  57 


674  CONFLICT   OF   LAWS.  [CH.  IX. 

pleasure,  and  to  give  local  preferences  to  different  cred- 
itors, according  to  his  own  partialities  or  prejudices. 
Such  a  state  of  things,  and  such  conflicting  systems, 
would  lead  to  great  public  inconvenience  and  confusion, 
and  be  the  source  of  much  fraud  and  injustice,  and  dis- 
turb the  equality  and  equity  of  any  bankrupt  system  in 
any  country.^ 

§  406.  There  is  great  wisdom,  therefore,  in  adopting 
the  rule,  that  an  assignment  in  bankruptcy  shall  operate 
as  a  complete  and  valid  transfer  of  all  his  movable 
property  abroad,  as  well  as  at  home ;  and  it  has  accord- 
ingly received  a  very  general  sanction.  It  is  true,  that 
any  nation  may  adopt,  if  it  pleases,  a  different  system, 
and  prefer  an  attaching  domestic  creditor  to  a  foreign  as- 
signee or  to  foreign  creditors.  But  such  a  course  of 
legislation  can  hardly  be  deemed  consistent  with  the 
general  comity  of  nations,  and  could  scarcely  fail  to 
bring  on  a  retaliatory  sj^stem  of  preferences  in  every 
other  nation  injured  thereby.  But,  until  such  a  legisla- 
tion is  positively  made,  and  interposes  a  direct  obstruc- 
tion, the  true  rule  is,  to  follow  out  the  lead  of  the  gen- 
eral principle,  that  makes  the  law  of  the  owner's  domi- 
cil  conclusive  upon  the  disposition  of  his  personal  pro- 


1  Holmes  v.  Remsen,  4  Johns.  Ch.  Pv.  471;  Phillips  v.  Hunter,  2  H. 
Black.  402.  — In  Phillips  v.  Hunter,  (2  H.  Black.  402,  403,)  the  Court 
said ;  "  The  great  principle  of  the  Bankrupt  laws  is  justice  founded  on 
equality.  This  being  the  principle  of  those  laws,  it  seems  to  follow,  that 
the  whole  property  of  the  bankrupt  must  be  under  their  (the  assignees,) 
control,  without  regard  to  the  locality  of  that  property,  except  in  cases 
which  directly  militate  against  the  particular  laws  of  the  country,  in  which 
it  happens  to  be  situated."  If  the  bankrupt  laws  were  circumscribed  by 
the  local  situation  of  the  property,  a  door  would  be  open  to  all  the  par- 
tiality and  undue  preferences,  which  they  were  framed  to  prevent ;  it  being 
easy  to  foresee,  how  frequently  property  would  be  sent  abroad  with  that 
unjust  view  immediately  previous  to  and  in  contemplation  of  bankruptcy." 


CH.  IX. J  PERSONAL   PROPERTY.  675 

perty.^  This  reasoning  applies  in  an  especial  manner  to 
contracts  made  in  the  very  country,  where  the  party  is 
declared  bankrupt.^ 

§  407.  There  are  many  authorities  in  favor  of  this 
doctrine.  As  early  as  1723,  Lord  Talbot,  then  at  the 
bar,  gave  an  opinion,  that  the  statutes  of  bankruptcy 
of  England,  did  not  extend  to  the  plantations ;  yet  that 
the  personal  property  of  an  English  bankrupt  in  the 
plantations  passed  to  the  assignees.^  Lord  Hardwicke, 
in  a  case  in  judgment  before  him,  adopted  and  acted 
upon  the  doctrine,  that  an  assignment  in  bankruptcy  in 
England  conveyed  the  personal  property  of  the  bank- 
rupt in  foreign  countries ;  and  that  their  title  would 
overreach  that  of  an  attaching  creditor  after  the  assign- 


1  Holmes  V.  Remsen,  4  Johns.  R.  471,  472  ;  Hunter  v.  Potts,  4  T.  R. 
182,  192.  Sill  V.  Worswick,  1  H.  Black.  691,  693.— In  Phillips  v. 
Hunter,  (2  H.  Black.  402,  405,)  the  Court  said  ;  "  It  is  true,  that  the 
laws  of  the  country,  where  the  property  is  situated,  have  the  immediate 
control  over  it,  in  respect  to  its  locality,  and  the  immediate  protection 
afforded  to  it ;  yet  the  country,  where  the  proprietor  resides,  in  respect  to 
another  species  of  protection  afforded  to  him  and  his  property,  has  a  right 
to  regulate  his  contract  relating  to  that  property."  And  in  Hunter  v. 
Potts,  (4  T.  R.  182,)  the  Court  said ;  "  Every  person  having  property  in 
a  foreign  country  may  dispose  of  it  in  this ;  though,  indeed,  if  there  be  a 
law  in  that  country,  directing  a  particular  mode  of  conveyance,  that  must 
be  adopted."  "If  (said  Lord  Loughborough)  the  bankrupt  happens  to 
have  property,  which  lies  out  of  the  jurisdiction  of  the  law  of  England, 
if  the  country,  in  which  it  lies,  proceeds  according  to  the  principles  of 
well  regulated  justice,  there  is  no  doubt,  that  it  will  give  effect  to  the  title 
of  the  assignees."  "  But  if  the  law  of  that  country  preferred  him  (a 
creditor)  to  the  assignees,  though  I  must  suppose  that  determination  wrong, 
yet  I  do  not  think,  that  my  holding  a  contrary  opinion  would  revoke  the 
determination  of  that  country,  however  I  might  disapprove  of  the  princi- 
ciple  on  which  that  law  so  decided."  Sill  v.  Worswick,  1  H.  Black.  691 , 
693. 

2  Sill  V.  Worswick,  1  H.  Bl.  691,  693,  694;  Phillips  v.  Hunter,  2  H. 
Bl.  404,  405  ;  Hunter  v.  Potts,  4  Term  R.  182. 

3  Livermore,  Diss.  140 ;  Beames,  Lex.  Mercatoria,  p.  5,  6,  6th  edit. 


676  CONFLICT   OF   LAWS.  [CH.  IX. 

ment,  although  at  that  time  it  was  not  made  known  to 
the  debtor.^  In  another  case  in  the  Court  of  Chancery 
in  England,  in  1704,  where  the  property  of  the  owner, 
who  was  domiciled  in  Holland,  was  taken  under  a  com- 
mission of  bankruptcy,  and  according  to  the  laws  of 
Holland,  the  administration  thereof  given  to,  and  vested 
in  persons,  who  are  called  Curators  of  Desolate  Estates, 
it  was  decided,  that  the  Curators  had  immediately  up- 
on their  appointment  a  title  to  recover  the  debts  due  to 
the  bankrupt  in  England,  in  preference  to  the  diligence 
of  particular  creditors  seeking  to  attach  those  debts.^ 
In  another  case  in  1769,  the  same  point  was  decided."'^ 
These  are  cases,  in  which  the  rule  was  asserted  in  favor 
of  foreign  assignees."*  A  like  decision  in  favor  of  Eng- 
lish assignees  was  made  in  the  Court  of  Chancery  in 
Ireland  in  1763.^  Lord  Thurlow  gave  it  the  sanction 
of  his  own  great  name  in  a  case  decided  by  him  in 
1787.^ 

§  408.  The  question  was  most  elaborately  considered 
in  England  in  two  cases  decided  in  1791,  in  which  it 
was  solemnly  held,  that  the  operation  of  the  bankrupt 
laws  is  to  vest  in  the  assignees  all  the  personal  property 
of  the  bankrupt,  wherever  it  may  be  situate ;  and  that 
whenever  that  property  shall  be  brought  into  England 


1  In  Wilson's  Case,  cited  in  1  H.  Bl.  691,  692,  and  probably  decided 
between  1752  and  1756.  See  also  S.  Ceiled  in  Hunter  v.  Potts,  4  T.  R, 
186,  187. 

2  Solomons  v.  Ross,  1  H.  Bl.  131,  note  ;  Id.  601  ;  S.  C.  Cook's  Bank. 
Laws,  306,  4lh  edit. 

a  Jollet  V.  Deponthieu,  1  H.  151.  132,  note  ;  Id.  691. 

4  Ibid. 

5  Neale  v.  Cottingham,  1  H.  Bl.  R.  132,  note  ;  S.  C.  cited  in  Hunter 
V.  Potts,  4  T.  R.  194,  and  Cooke's  Bank.  Laws,  p.  303,  4th  edit.,  1799. 
See  also  Quelin  v.  Moisson,  1  Knapp,  Appeal  R.,  265,  note. 

6  Ex  parte  Blakes,  1  Cox,  R.  398. 


CH.   IX.]  PERSONAL   PROPERTY.  677 

by  any  person  who  lias  obtained  it,  the  assignees  will 
have  a  right  to  recover  it  of  him,  for  the  benefit  of  all 
the  creditors ;  and,  consequently,  that  an  attachment 
and  recovery  of  such  property,  made  by  a  creditor  in  a 
foreign  country  after  such  assignment,  will  be  held  in- 
operative ;  upon  the  principle,  that  the  title,  which  is 
prior  in  point  of  time,  ought  to  obtain  preference  in 
point  of  right  and  law.^  Upon  a  writ  of  error  the  gen- 
eral doctrine  maintained  in  these  cases  was  affirmed ; 
but  in  its  actual  application  it  was  restricted  to  attach- 
ments made  by  British  creditors  against  British  debtors. 
In  this  state  the  doctrine  remained  until  a  very  recent 
period,  when  in  the  case  of  the  bankruptcy  of  an  Eng- 
lish partner  in  a  Scotch  partnership,  it  was  discussed 
anew.  A  commission  of  bankruptcy  was  issued  in 
England ;  and  subsequently  an  arrest,  attachment,  or 
sequestration,  was  made,  by  a  creditor,  of  debts  due  to 
the  bankrupt  in  Scotland.  The  question  then  arose, 
whether  the  assignees,  or  the  attaching  creditor,  was 
entitled  to  priority ;  and  this  depended  on  the  question, 
whether  an  English  commission  of  bankruptcy  passed 
to  the  assignees  the  title  to  property,  or  debts  locally 
situate,  or  due  in  Scotland.  The  Court  of  Session  in 
Scotland  held,  that  it  did;^  and  upon  appeal,  this  judg- 
ment was  affirmed  by  the  House  of  Lords.  "  One 
thing"  (said  Lord  Eldon)  "is  quite  clear,  that  there  is 
not  in  any  book  any  dictum  or  authority  that  would 


1  Sill  V.  Worswick,    1  H.   Bl.   665,  690,  691,  694;  Hunter  u.  Potts, 
4  T.  R.  192;  S.  C.  in  Err.  2  H.  Bl.  402. 

~  The  Court  of  Session,  in  Scotland,  gave  very  elaborate  opinions  on 
this  subject,  in  the  Royal  Bank  of  Scotland  v.  Cuthbert,  commonly  cited 
as  Stein's  case,  1  Rose,  Bank.  Cases,  Appx.  412  ;  2  Rose,  Bank.  Cases, 
91,  78.  See  also  Smith  v.  Buchanan,  1  East,  R.  6  ;  2  Bell,  Comm.  684 
to  687,  4th  edit.  ;  Id.  p.  680  to  691,  5th  edit. 
57* 


678  CONFLICT    OF    LAWS.  [CIL    IX. 

authorize  me  to  deny,  at  least  in  this  place,  that  an 
English  commission  passes,  as  with  respect  to  the  bank- 
rupt and  his  creditors  in  England,  the  personal  property 
he  has  in  Scotland  or  in  any  foreign  country."  ^ 


'  Selkrig  v.  Davis,  2  Rose,  Bank.  Cases,  291,  214  ;  S.  C.  2  Dow.  R. 
230,  250 ;  2  Rose,  Bank.  Cases,  97.  See  also  Ex  parte,  by  Dobrey, 
8  Ves.  82  ;  2  Bell,  Comm.  684  to  687,  4th  edit.  ;  Holmes  v.  Remsen, 
4  Johns.  Ch.  R.  460  ;  S.  C.  20  Johns.  R.  229.  —  The  Judgment  of  Lord 
Eidon,  which  was  affirmed  apparently  with  entire  unanimity,  contains 
many  striking  remarks  upon  the  difficulties  attendant  upon  any  other  sys- 
tem of  international  jurisprudence.  The  following  extracts  are  particu- 
larly valuable  to  be  submitted  to  the  consideration  of  the  American  Courts. 
"  In  whatever  way  a  Scottish  sequestration  may  be  enforced,  the  distribu- 
tion of  a  bankrupt's  effects  under  it  is  perfectly  different  from  what  it  is 
under  an  English  commission  of  bankruptcy.  The  Scottish  law  cuts  down 
all  securities  that  have  been  made  or  given  within  a  certain  number  of 
days  prior  to  the  issuing  of  the  sequestration,  whether  they  have  been 
given  bona  fide,  or  given,  as  we  should  say,  in  contemplation  of  bank- 
ruptcy. On  the  other  hand,  in  our  law,  though  the  approximation  of  the 
security  to  the  date  of  the  commission  may  be  evidence  that  it  was  given 
in  contemplation  of  bankruptcy,  yet  it  is  but  evidence;  and  the  security 
may  be  perfectly  good.  Again,  in  England,  a  man  cannot  become  a 
bankrupt  without  committing  an  act  of  bankruptcy.  The  cominission 
must  be  founded  on  that  act  of  bankruptcy  ;  and  there  are  various  other 
differences  applying  to  the  property  of  a  bankrupt,  as  administered  under 
an  English  commission,  or,  vice  versa,  as  distributed  by  the  rules,  and 
according  to  the  forms  of  a  Scottish  sequestration.  If,  my  Lords,  you 
attempt  to  obviate  these  inconveniences  by  a  coexisting  sequestration  and 
commission,  the  difficulty  is  tenfold  greater,  unless  the  one  should  be  used 
merely  as  the  means  of  assisting  the  distribution  of  the  funds  on  the  other. 
What  personal  property  shall  belong  to  the  one  proceeding,  and  what  to 
the  other  proceeding,  is  no  ordinary  difficulty.  The  counsel  for  the  ap- 
pellant say  there  is  no  difficulty.  —  That  a  debt  owing  to  the  house  in 
Scotland,  wherever  the  debtor  lives,  ought  to  go  to  the  Scotch  sequestra- 
tion ;  and,  in  like  manner,  that  the  debt  owing  to  the  house  in  England, 
wherever  the  debtor  lives,  should  go  to  the  commission.  But  the  house 
may  be  constituted  of  persons,  of  whom  it  may  be  difficult  to  say,  whether 
a  man  is  a  Scotchman  or  an  Englishman.  It  may  happen,  that  a  house 
is  composed  of  persons,  some  of  whom  reside  in  Scotland  and  some  in 
England.  I  should  wish  to  know,  not  only,  how  the  joint  debts  due  to 
one  firm,  and  the  joint  debts  due  to  the  other,  are  to  be  distributed  ;  but 
where  separate  debts  are  due  to  each,  whether  the  separate  debts  are  to 


/ 


CH.  IX.]  PERSONAL   PROPERTY.  679 

§  409.  This  is  now,  accordingly,  the  settled  law  of 
England,  in  which  the  following  propositions  are  firmly 
established  ;  first,  that  an  assignment  under  the  bank- 
rupt law  of  a  foreign  country  passes  all  the  personal 
property  of  the  bankrupt  locally  situate,  and  debts 
owing  in  England ;  secondly,  that  an  attachment  of 
such  property  by  an  English  creditor,  after  such  bank- 
ruptcy, with  or  without  notice  to  him,  is  invalid  to 
overreach  the  assignment ;  thirdly,  that  in  England  the 
same  doctrine  holds  under  assignments  by  her  own 
bankrupt  laws,  as  to  personal  property  and  debts  of  the 
bankrupt  in  foreign  countries  ;    fourthly,  that,  upon 


be  a  fund  of  distribution  under  the  English  commission,  or  under  the 
Scottish  sequestration,  or  what  is  to  become  of  them.  All  these  difficulties 
certainly  belong  to  this  case.  But,  notwithstanding  that,  one  thing  is 
quite  clear  ;  there  is  not  in  any  book,  any  dictum  or  authority  that  would 
authorize  me  to  deny,  at  least  in  this  place,  that  an  English  commission 
passes,  as  with  respect  to  the  bankrupt  and  his  creditors  in  England,  the 
personal  property  he  has  in  Scotland  or  in  any  foreign  country.  It  is  ad- 
mitted, that  the  assignment  under  the  English  commission,  as  between 
the  bankrupt  and  the  English  and  Scotch  proprietors,  passes  the  Scotch 
property,  and  vests  in  the  assignees,  when  the  Scotch  creditors  have  not 
used  legal  diligence.  I  think  the  case  was  put  at  the  bar  thus ;  That  the 
commission  of  bankruptcy  operated  so  as  to  bring  into  the  fund  the  Scotch 
personal  property,  provided  that  such  personal  properly  was  not  arrested 
by  legal  diligence  in  Scotland,  prior  to  the  intimation  of  the  assignment  in 
Scotland.  It  was  therefore  argued,  that  this  was  to  be  put  on  the  same 
footing  as  the  case  of  tbe  assignation  of  a  particular  debt  to  a  particular 
individual.  Now,  your  Lordships  need  not  be  told  that,  by  the  law  of 
Scotland,  if  B.  assign  a  debt,  which  is  due  from  C.  to  B.,  a  creditor  of  B. 
may  arrest  that  debt  in  the  hands  of  the  debtor,  notwithstanding  the  as- 
signment, unless  the  assignee  has  given  an  intimation  formally  to  the  per- 
son by  whom  the  debt  is  owing.  That  must  be  admitted.  Upon  that  it 
has  been  insisted  here,  that  no  intimation  has  been  given,  and  that  this 
subsequent  arrestment  in  1798  ought  to  have  the  preference  of  the  title  of 
the  assignees,  under  the  commission,  that  was  sued  out  in  the  year  1782." 
2  Rose,  Bank.  Cases,  314  to  316.  He  afterwards  proceeded  to  decide," 
that  no  intimation  was  necessary  ;  and  if  necessary,  it  was  given.  Id.  318, 
319.     See  Quelin  v.  Moisson,  1  Knapp,  Rep.  2G5. 


680  CONFLICT    OF    LAWS.  [CH.  IX. 

principle,  all  attachments  made  by  foreign  creditors, 
after  such  assignment  in  a  foreign  country,  ought  to  be 
held  invalid  ;  sixthly,  that  at  all  events  a  British  cre- 
ditor -will  not  be  permitted  to  hold  the  property  acquired 
by  a  judgment  under  any  attachment  made  in  a  foreign 
country  after  such  assignment ;  and  seventhly,  that  a 
foreign  creditor,  not  subjected  to  British  laws,  will  be 
permitted  to  retain  any  such  property  acquired  under 
any  such  judgment,  if  the  local  laws  (however  incor- 
rectly upon  principle)  confer  on  him  an  absolute  title.* 
There  is  no  inconsiderable  weight  of  American  authority 
on  the  same  side ;  but  it  must  be  admitted,  that  the 
preponderating  authority  is  certainly  now  the  other 
way.- 

§  410.  The  reasoning,  which  is  urged  in  support  of 
what  may  be  deemed  the  American  Doctrine,  is  to  the 


1  2  Bell,  Coram.  ^  1266,  p.  687  to  690,  4th  edit. ;  Id.  p.  680  to  690, 
5th  edit.  ;  Holmes  v.  Remsen,  4  Johns.  Ch.  R.  560  ;  S.  C.  20  Johns.  R. 
229  ;  Dwarris  on  Statutes,  650,  651. 

2  Mr.  Chief  Justice  Parsons  certainly  held  this  opinion  in  Goodwin  v. 
Jones,  3  Mass.  R.  517.  And  Mr.  Chancellor  Kent  has  sustained  it  in  one 
of  his  most  elaborate  judgments,  which  will  well  reward  a  diligent  perusal. 
Holmes  v.  Remsen,  4  Johns.  Ch.  R.  460.  This  is  also,  as  we  shall  see, 
the  law  in  France  and  Holland.  Post,  ^  417.  See  Parish  v.  Seton, 
Cooper's  Bank.  Law,  27;  Holmes  v.  Remsen,  4  Johns.  Ch.  R.  484;  S. 
P.  20  Johns.  R.  258  ;  Blake  v.  Williams,  6  Pick.  R.  312,  313  ;  Merlin 
Repertoire,  Faillit6  et  Banqueroute,  Art.  10.  Mr.  Chancellor  Kent,  in 
his  Commentaries  (2  Kent,  Coram.  Lect.  37,  p.  404  to  408,  3d  edit.)  has 
with  great  candor  admitted,  that  the  American  doctrine  is  now  established 
the  other  way  by  a  preponderance  of  authority  ;  although  he  has  an  undis- 
guised distrust  of  the  validity  of  its  foundation.  There  are  not  a  few 
jurists  in  America,  each  of  whom  may  be  disposed  to  use  on  this  occasion 
the  language  of  a  great  orator  of  antiquity,  "  Ego  assentior  Scffivolae." 
See  Livermore's  Diss.  §  223  to  248,  p.  140  to  158.  There  are  in  Mr. 
Henry's  Appendix  to  his  work  on  Foreign  Law,  p.  251  to  p.  258,  some 
curious  opinions  given  by  Counsel  in  1715,  as  to  the  effect  of  an  attach- 
ment after  a  foreign  bankruptcy.  See  also  Devisme  v.  Martin,  Wyelh's 
Virg.  R.  133. 


CH.  IX.]  PERSONAL   PROPERTY.  681 

following  effect.  It  is  admitted,  that  the  general  rule 
is,  that  personal  property,  including  debts,  has  no  local- 
ity, but  follows,  as  to  its  disposition  and  transfer,  the 
law  of  the  domicil  of  the  owner.  But  every  country 
may  by  positive  law  regulate,  as  it  pleases,  the  disposi- 
tion of  personal  property  found  within  it ;  and  may 
prefer  its  own  attaching  creditors  to  any  foreign  as- 
signee ;  and  no  other  country  has  any  right  to  question 
the  determination.  When  there  is  no  positive  law,  the 
general  rule  is  to  govern,  with  the  exception  of  such 
cases  as  fall  within  the  known  principle  of  Huberus, 
that  it  is  not  prejudicial  to  the  State,  or  to  the  just 
rights  of  its  citizens.  And  this  exception  is  the  very 
ground  upon  which  the  objection  to  the  ubiquity  of 
operation  of  the  bankrupt  laws  of  a  country,  as  respects 
the  personal  estate  of  the  bankrupt,  is  to  be  rested.^ 

§  411,  There  is  a  marked  distinction  between  a 
voluntary  conveyance  of  property  by  the  owner,  and  a 
conveyance  by  mere  operation  of  law  in  cases  of  bank- 
ruptcy in  invitiun.  Laws  cannot  force  the  will,  nor 
compel  any  man  to  make  a  conveyance.  In  place  of  a 
voluntary  conveyance  of  the  owner,  all  that  the  Legis- 
lature of  a  country  can  do,  when  justice  requires  it,  is 
to  assume  the  disposition  of  his  property  in  invitum. 
But  a  statutable  conveyance,  made  under  the  authority 
of  any  Legislature,  cannot  operate  upon  any  property, 
except  that  which  is  within  its  own  territory.  This 
makes  a  solid  distinction  between  a  voluntary  convey- 
ance of  the  owner  and  an  involuntary  legal  conveyance 
by  the  mere  authority  of  law.     The  former  has  no  rela- 


1  Blake  v.  Williams,  G  Pick.  286  ;  Olivier  v.  Townes,  14  Martin,  R. 
93,  97  to  100;  Milne  v.  Moreton,  6  Binn.  353;  Very  v.  McHenry, 
29  Maine,  208. 


682  CONFLICT    OF   LAWS.  [CH.  IX. 

tion  to  place  ;  the  latter,  on  the  contrary,  has  the  strict- 
est relation  to  place.  This  distinction  is  insisted  on 
with  great  force  by  Lord  Karnes.^  It  is,  therefore,  ad- 
mitted, that  a  voluntary  assignment  by  a  party,  accord- 
ing to  the  law  of  his  domicil,  will  pass  his  personal 
estate,  whatever  may  be  its  locality,  abroad  as  well  as 
at  home.  But  it  by  no  means  follows,  that  the  same 
rule  should  govern  in  cases  of  assignments  by  operation 
of  law. 

§  412.  The  true  rule  in  such  cases  is  to  hold,  that 
the  assignees  are  in  the  same  situation,  as  the  bankrupt 
himself,  in  regard  to  foreign  debts.  They  take  the  pro- 
perty under  the  assignment,  subject  to  every  equity  be- 
longing to  foreign  creditors,  and  subject  to  the  remedies 
provided  by  the  laws  of  the  foreign  country,  where  the 
debt  is  due ;  and  when  they  are  permitted  to  sue  in  a 
foreign  country,  it  is  not  as  assignees,  having  an  inte- 
rest, but  as  the  representatives  of  the  bankrupt.  They 
stand  upon  the  footing  of  administrators  only,  with  a 
right  to  sue  for  the  benefit  of  all  the  creditors.  But 
our  local  law  will  not  regard  the  choses  in  action  of  the 
debtor,  as  exclusively  appropriated  to  the  use  of  such 
assignees ;  and  a  preference  can  be  gained  by  them 
only  by  pursuing  the  remedies,  which  our  local  laws 
afford.     This  was  formerly  the  rule  in  England.^ 

§  413.  Nor  can  it  be  truly  said,  that  an  assignment 
by  the  bankrupt  laws  is  with  the  consent  of  the  bank- 
rupt, because  he  assents  by  implication  to  such  laws. 
This  is  a  very  unsafe  and  dangerous  principle,  on  which 
to  risk  the  doctrine ;  for  in  the  same  way  it  may  be 


1  Kames  on   Equity,  B.  3,  ch.  8,  §  6  ;  Remsen  v.  Holmes,  20  Johns. 
R.  258,  259  ;  Moreton  v.  Milne,  6  Binn.  353,  369;  ante,  ^  351  b. 

2  See  Mavvdesley  v.  Paik,  cited  1  H.  Black.  R.  680. 


CH.  IX.]  PERSONAL   PROPERTY.  683 

said,  that  a  man,  committing  a  crime,  for  ■which  his 
estate  is  forfeited,  voluntarily  consents  to  its  transfer. 
But  the  principle,  whether  correct  or  not,  can  only 
apply  to  cases,  where  the  debtor  and  creditor  belong  to 
the  same  country.  It  is  wholly  inapplicable  to  foreign 
creditors. 

§  414.  Besides;  national  comity  requires  us  to  give 
effect  to  such  assignments  only  so  far  as  may  be  done 
without  impairing  the  remedies,  or  lessening  the  secu- 
rities, which  our  laws  have  provided  for  our  own  citizens. 
The  rule  is;  Qiiatenus  sine  prejiidicio  indulgeniiwn  fieri  po- 
test} And  after  all,  this  is  mere  comity,  and  not  inter- 
national law.  All  comity  of  this  sort  must  be  built  up 
in  a  great  measure  upon  the  doctrine  of  reciprocity ; 
and  this  is  extremely  difficult  from  the  known  diversi- 
ties in  the  jurisprudence  of  different  nations.^  It  would 
prejudice  the  rights  and  remedies  of  our  citizens  in  our 
own  courts,  to  suffer  the  assignments  under  foreign 
bankrupt  laws  to  prevail  over  their  own  diligence,  in 
seeking  remedies  against  their  debtors  in  our  own  courts. 
If  there  is  in  such  cases  a  conflict  between  our  own  laws 
and  foreign  laws,  as  to  the  rights  of  our  citizens,  and 
one  of  them  must  give  way,  our  own  laws  ought  to  pre- 
vail.^ The  most  convenient  and  practical  rule  is,  that 
statutable  assignments,  as  to  creditors,  shall  operate 
intra-territorially  only.  If  our  citizens  conduct  them- 
selves according  to  our  laws  in  regard  to  the  property  of 
their  debtors,  found  within  our  jurisdiction,  it  is  reason, 
able,  that  they  should  reap  the  fruits  of  their  diligence- 


'   Hubenis,  Lib.  1,  tit.  3,  De  Conflict.  Leg.  ^  2. 

2  Blake  v.  Williams,  6  Pick,  R.  26!J,  313,  314,  315;  Milne  v.  Moreton, 
6  Binn.  353,  375  ;  Remsen  v.  Holmes,  20  Johns.  R.  229,  263,  264. 

3  Potter  V.  Brown,  5  East,  R.  131  ;  ante,  ^  326. 


684  CONFLICT    OF    LAWS.  [CH.  IX. 

and  not  be  sent  to  a  foreign  country  to  receive  such  a 
dividend  of  their  debtors  effects,  as  the  foreign  laws 
allow.  If  each  government  in  cases  of  insolvency  should 
sequester,  and  distribute  the  funds  within  its  own  juris- 
diction, the  general  result  will  be  favorable  to  the  inte- 
rest of  creditors,  and  to  the  harmony  of  nations.  This 
is  the  rule  adopted  in  all  cases  of  administration  of  the 
property  of  deceased  persons ;  and  there  is  no  real  diffe- 
rence between  the  principle  of  those  cases,  and  of  cases 
of  bankruptcy.^ 

§  415.  Down  to  the  time  of  the  American  Revolu- 
tion, this  may  be  fairly  deemed  to  have  been  the  Eng- 
lish doctrine.  It  has  since  been  changed.  Even  in 
England  the  principle  has  not  as  yet  been  applied  in 
favor  of  any  foreign  countries,  except  such  as  have 
bankrupt  laws  in  form  pr  substance  ;  and  we  have  none 
in  our  country.-  It  can  make  no  difference  in  the  case, 
whether  the  debt  of  the  attaching  creditor  accrued 
here,  or  in  foreign  countries ;  for  in  either  case  the 
question  is  not,  as  to  the  validity  of  the  contract ;  but 
as  to  a  collateral  matter,  that  is  to  say,  the  effect  to  be 
given  to  it,  in  a  conflict  between  rights  growing  out  of 
our  own  laws,  and  those  of  a  foreign  country.^ 

§  416.  Neither  is  it  true,  that  even  the  voluntary 
conveyances  of  parties  in  all  cases  are  to  be  held  valid, 
where  they  are  prejudicial  to  the  rights  and  remedies  of 
our  own  citizens.  In  Massachusetts,  for  instance,  it  has 
been  held,  that  a  voluntary  assignment  by  a  debtor  of 


1  Remsen  v.  Holmes,  20  Johns.  R.  229,  265  ;  Milne  v.  Moreton, 
6  Binn.  R.  353,  361  ;   Blake  v.  Williams,  6  Pick.  R.  286. 

2  Remsen  v.  Holmes,  20  Johns.  R.  229  ;  Blake  v.  Williams,  6  Pick.  R. 
286;  Milne  v.  Moreton,  6  Binn.  R.  353;  Wallis  v.  Patterson,  1  Har.  & 
McHen.  R.  463  ;  Abraham  v.  Plestero,  3  Wendell,  R.  538,  549,  550. 

^  Milne  V.  Moreton,  6  Binn.  360, 


CH.  IX.]  PERSONAL   PROPERTY.  685 

all  his  property,  made  in  Pennsylvania  for  the  benefit 
of  creditors  generally,  shall  not  prevail  over  a  subse- 
quent attachment  of  the  funds  of  the  debtor  made  after 
the  assignment ;  because  such  an  assignment  would  be 
void  by  the  laws  of  Massachusetts,  if  made  in  that 
State,  as  being  in  fraud  of  creditors  ;  and  it  is  unjust 
and  unequal  in  its  effects,  and  prejudicial  to  the  citi- 
zens of  the  State.  In  such  a  case,  therefore,  the  party, 
who  shall  by  process  first  attach  the  debt,  or  seize  the 
property,  ought  to  prevail  whether  creditor  or  assignee.^ 
§  417.  It  is  admitted,  in  the  reasoning  in  the  Ameri- 
can cases,  that  the  old  law  of  France  and  Holland  is 
in  coincidence  with  the  British  doctrine.^  The  modern 
law  of  those  countries  is  equally  decisive  in  its  support ; 
and  very  recent  cases  have  given  it  a  complete  confirm- 
ation in  their  tribunals.  The  principal  grounds  of 
their  decisions  may  be  summed  up  in  the  following 
propositions.  (1.)  That  the  law  of  the  domicil  may 
rightfully  devest  the  debtor  of  the  administrator  of  his 


1  Ingrahamv.  Geyer,  13  Mass.  R.  146;  S.  C.  cited  6  Pick.  R.  307. 
See  also  Olivier  v.  Tovvnes,  6  Pick.  R.  97  to  101.  —  This  summary  of  the 
American  reasoning  is  principally  extracted  from  the  three  leading  cases 
of  Milne  v.  Moreton,  6  Binn.  R.  353,  Remsen  v.  Holmes,  20  Johns.  R. 
229,  and  Blake  v.  Williams,  6  Pick.  R.  286,  where  the  subject  is  very 
elaborately  discussed.  The  same  doctrine  vpill  be  found  supported  in  other 
American  cases,  cited  in  2  Kent,  Coram.  Lect.  37,  p.  406  to  408,  3d  edit. 
See  also  Olivier  v.  Townes,  14  Martin,  R.  93,  99  ;  Harrison  v.  Sterry,  5 
Cranch,  R.  289  ;  0>jden  v.  Saunders,  12  Wheaton,  R.  213;  Id.  360  to 
369  ;  Saunders  v.  Williams,  5  New  Hamp.  R.  213  ;  Plestero  v.  Abraham, 
1  Paige,  R.  237;  S.  C.  3  Wendell,  R.  538;  Fox  v.  Adams,  5  Greenl. 
R.  245;  Wallisu.  Paterson,  1  Harr.  &  McHen.  R.  236,  463;  Ogden  v. 
Saunders,  12  Wheat.  R.  213,  359,  360,  361,  362  ;  ante,  ^  399  to  401. 

2  Holmes  v.  Remsen,  4  Johns.  Ch.  R.  484  ;  Remsen  v.  Holmes,  20  Johns. 
R.  258;  Blake  v.  Williams,  6  Pick.  R.  312,  313;  ante,  ^09,  note; 
Henry  on  Foreign  Law,  p.  127  to  135  ;  Id.  p.  153  to  160  ;  Id.  p.  248  to 
250. 

CONFL,  58 


686  CONFLICT    OF   LAWS.  [CH.  IX. 

property,  and  place  it  under  the  administration  of  as- 
signees or  syndics.  (2.)  That  laws,  whose  effects  are 
to  regulate  the  capacity  and  incapacity  of  persons,  their 
personal  actions,  and  their  movables,  everywhere  be- 
long to  the  category  of  personal  statutes.  (3.)  That 
it  is  a  matter  of  universal  jurisprudence,  and  especially 
of  that  of  France  and  the  Netherlands,  that  the  debts, 
actively  considered,  of  an  inhabitant  against  a  foreigner, 
are  deemed  a  part  of  his  movable  property,  and  have 
their  locality  in  the  place  of  domicil  of  the  creditor.' 
At  the  same  time,  it  is  admitted,  that  a  purchaser  from 
the  bankrupt,  in  a  foreign  country,  of  property  there 
locally  situate,  would  be  entitled  to  hold  it  against  the 
assignees,  if,  at  the  time,  he  had  no  knowledge  of  any 
bankruptcy,  or  of  any  intent  to  defraud  creditors.^ 

§  418.  The  American  doctrine  has  been  followed  out 
to  another  result.  Suppose  (as  was  the  fact  in  one 
case)  after  a  commission  and  assignment  in  bankruptcy 
in  England,  the  bankrupt  should  voluntarily  make  a 
confirmatory  conveyance  in  aid  of  the  commission  ;  the 
question  is,  whether  it  will  have  the  effect  of  a  volun- 
tary assignment,  so  as  to  defeat  a  subsequent  attach- 
ment in  America  ?  It  has  been  held,  by  a  learned 
judge  in  New  York,  that  it  will  not ;  because,  by  the 
law  of  England,  the  commission  devests  the  title  of  the 
bankrupt  in  all  his  property  throughout  the  world  ; 
and  he  no  longer  has  any  capacity  to  convey  it ;  but  in 
regard  to  that  property,  he  is  to  be  treated  as  civiliter 
mortims.^     There  is  great  difficulty  in  maintaining  this 


1  Merlin  Repertoire,  Faillite  and   Hanqiieroute  ^  2,  3,  art.  10,  p.  412  ; 
Henry  on  Foreign  Law,  p.  127  to  135  ;  Id.  175. 

2  Merlin,  Id.  p.  415,  416. 

3  Mr.  Chief  Justice  Plait,  in  Remscn  v.  Holmes,  20  Johns.  R.  267, 


CH.  IX.]  PERSONAL   PROPERTY.  687 

doctrine.  For  if  the  statutable  assignment  does,  per  se 
transfer  the  personal  property  of  the  bankrupt  in  foreign 
countries  to  the  assignees,  and  devest  all  his  title  to  it, 
then  it  would  seem  to  follow,  that  a  subsequent  attach- 
ment of  it  must  be  wholly  inoperative,  because  he  has 
no  longer  any  attachable  interest  in  it.  We  are  not  at 
liberty  to  treat  the  property,  as  still  in  him  for  one  pur- 
pose, and  out  of  him  for  another.  The  doctrine  of  Mr. 
Chancellor  Kent  is  certainly  here  far  more  satisfactory, 
giving  to  such  a  voluntary  assignment  a  full  confirma- 
tory effect.^ 

§  419.  There  are  some  other  questions,  arising  from 
the  operation  of  foreign  bankrupt  laws,  and  other  ana- 
logous systems  of  proceeding  for  the  benefit  of  creditors 
generally,  in  invitum,  which  have  come  under  judicial 
cognizance,  and  deserve  attention.  In  the  first  place, 
suppose  a  British  subject  is  declared  bankrupt,  while 
he  is  on  a  voyage  in  Iransitu  from  England  to  America ; 
and  he  has  a  large  shipment  of  property  with  him  ;  is 
he  entitled  to  hold  it  when  it  arrives  in  America  ?  Or, 
can  his  assignees  maintain  a  suit  against  him,  or  against 
other  persons,  holding  it  for  his  use,  not  being  credit- 
ors ?  It  has  been  held,  by  a  learned  Chancellor  of 
New  York,  (Walworth,)  that  the  assignees  are  entitled 
to  recover,  upon  the  ground,  that  the  assignment  ope- 
rates as  a  good  conveyance  to  them  against  the  bank- 
rupt, and  those  holding  for  his  use.  On  that  occasion, 
the  learned  Judge  stated  the  distinction  between  that 
case,  and  the  preceding  cases.  "  In  those  cases,"  said 
he,  "the  contest  was  between  foreign  assignees  and 
domestic   creditors,   claiming   under   the   laws   of  the 


1  Holmes  v.  Remsen,  4  Johns.  Ch.  R.  489. 


688  CONFLICT    OF   LAWS.  [CH.  IX. 

countiy  where  the  property  was  situate,  and  where  the 
suits  were  brought.  The  question  in  those  cases  was, 
whether  the  personal  property  of  the  debtor  was  to  be 
considered  as  having  locality,  for  the  purpose  of  giv- 
ing a  remedy  to  the  creditors  residing  in  the  country, 
where  the  property  was  in  fact  situated  at  the  time  of 
the  foreign  attachment.  In  this  case,  the  controversy 
is  between  the  bankrupt  and  his  assignees  and  credit- 
ors, all  residing  in  the  country  under  whose  laws  the 
assignment  was  made.  Even  the  propert}^  itself  at  the 
time  of  assignment  was  constructively  within  the  juris- 
diction of  that  country,  being  on  the  high  seas,  in  the 
actual  possession  of  a  British  subject.  Under  such  cir- 
cumstances the  assignment  had  the  effect  to  change  the 
property,  and  devest  the  title  of  the  bankrupt,  as  if  the 
same  has  been  sold  in  England  under  an. execution 
against  him,  or  he  had  voluntarily  conveyed  the  same 
to  the  assignees  for  the  benefit  of  his  creditors."  ^ 
Upon  an  appeal,  however,  this  doctrine  was  not  in 
terms  confirmed  by  the  appellate  Court ;  and  some  of 
the  Judges  dissented  from  the  doctrine  of  the  Chancel- 
lor. But  the  case  was  ultimately  reversed  on  another 
point.^ 


1  Plestero  v.  Abraham,  1  Paige,  R.  236  ;  S.  C.  3  W^end.  R.  538. 

2  Abraham  v.  Plestero,  3  Wend.  538.  — It  is  difficult  to  perceive,  how 
the  doctrine  of  the  Chancellor,  as  to  the  operation  of  the  British  bankrupt 
laws  upon  British  subjects  and  their  property  in  transitu,  can  be  answered. 
The  transfer  must  be  admitted  to  be  operative  to  devest  the  bankrupt's 
title  to  the  extent  of  an  estoppel,  as  to  his  own  personal  claim  in  opposi- 
tion to  it  ;  for  the  law  of  America,  be  it  what  it  may,  had  not  then  ope- 
rated upon  it.  It  was  not  locally  within  our  jurisdiction.  No  one  could 
doubt  the  right  of  the  assignee  to  personal  property  locally  in  England  at 
the  time  of  the  assignment.  In  what  respect  does  such  a  case  differ  from 
a  case  where  it  has  not  passed  into  another  jurisdiction]  Is  there  any 
substantial  difference  between  its  being  on  board  of  a  British  vessel  and 


CH.  IX.]  PERSONAL   PROPERTY.  689 

§  420.  It  is  obvious,  that  the  great  question  involved 
in  this  case  was,  whether  an  assignment  under  a  foreign 
bankrupt  law  operates  as  a  transfer  of  personal  property 
in  this  country.  It  matters  not,  in  respect  to  the  bank- 
rupt himself,  or  others  claiming  under  him,  not  being- 
creditors  or  purchasers,  whether  it  operates  as  a  legal, 
or  as  an  equitable  transfer.  In  either  way  it  will  devest 
him  of  his  beneficial  interest.  Upon  this  point,  it  is 
impossible  not  to  feel,  that  the  general  current  of  Ame- 
rican authority  is  in  perfect  coincidence  with  that  of 
England,  in  favor  of  the  title  of  the  assignees.^  In 
most  of  the  cases  in  which  assignments  under  foreign 
bankrupt  laws  have  been  denied  to  give  a  title  against 
attaching  creditors,  it  has  been  distinctly  admitted,  that 
the  assignees  might  maintain  suits  in  our  courts  under 
such  assignments  for  the  property  of  the  bankrupt.^ 
This  is  avowed  in  the  most  unequivocal  manner  in  the 
leading  cases  in  Pennsylvania  and  New  York,  already 
cited,  and  it  is  silently  admitted  in  those  in  Massachu- 


its  being  on  board  of  an  American  vessel  on  the  high  seas?     See  ante, 
§  391. 

1  See  1  H.  Black.  691  ;  6  Maulc  &  Selw,  126 ;  1  East,  R.  6  ;  Cooke's 
Bank.  Laws,  (4th  edit.)  304  ;  Doug.  R.  161,  170  ;  ante,  ^  403  to  ^  410. 

2  In  Alivon  v.  Furnival,  1  Cromp.  Mees.  &  Rose.  296,  it  was  held, 
that  if  by  the  law  of  the  foreign  country  the  assignees  or  syndics  of  a 
foreign  Bankrupt  may  sue  there,  the  same  right  to  sue  in  England  will  be 
allowed  by  the  comity  of  nations  ;  and  that  if  there  are  three  assignees  or 
syndics  appointed  under  the  foreign  law,  that  two  may  by  that  law  sue 
without  joining  the  third,  the  same  right  to  sue  by  two  will  be  acknow- 
ledged and  enforced  by  the  same  comity  in  England.  Upon  that  occasion 
Mr.  Baron  Parke,  in  delivering  the  opinion  of  the  Court,  said  :  "This  is 
a  peculiar  right  of  action  created  by  the  law  of  the  country,  and  we  tliink 
it  may  by  the  comity  of  nations  be  enforced  in  this,  as  much  as  the  right 
of  foreign  assignees  or  curators,  or  foreign  corporations  appointed  or  cre- 
ated in  a  different  way  from  that  which  the  law  of  this  country  requires." 
See  ante,  ^  355,  399,  400  ;  post,  ^  565,  506. 

58* 


690  CONFLICT    OF    LAWS.  [CH.  IX. 

setts.i  And  unless  the  admission  can  be  overthrown, 
it  surrenders  the  principle  ;  for  no  one  will  contend, 
that  the  assignees  can  sue  either  in  law  or  equity  in 
our  courts,  unless  they  possess  some  title  under  the  as- 
signment. The  point  has  hitherto  been  a  struggle  for 
priorit}^  and  preference  between  parties,  claiming  against 
the  bankrupt  under  opposing  titles  ;  the  assignees 
claiming  for  the  general  creditors,  and  the  attaching 
creditors  for  their  separate  rights. 

§  421.  It  is  true,  that  Mr.  Chief  Justice  Marshall,  in 
delivering  the  opinion  of  the  Court  in  Harrison  v. 
Sterry,^  used  the  following  language  :  "  As  the  bank- 
rupt law  of  a  foreign  country  is  incapable  of  operating 
a  legal  transfer  of  property  in  the  United  States,  the 
remaininc:  two  thirds  of  the  funds  are  liable  to  the  at- 
taching  creditors,  according  to  the  legal  preference 
obtained  by  their  attachments."  But  the  very  terms 
of  this  statement  show,  that  the  Court  were  examining 
the  point,  only  as  between  the  conflicting  rights  of  the 
assignees  and  those  of  the  attaching  creditors,  and  not 
in  relation  to  the  bankrupt  himself  And  this  is  man- 
ifestly the  light  in  which  the  doctrine  was  contemplated 
by  the  majority  of  the  Court  in  a  subsequent  case.^ 

§  422.  In  cases  of  partnership,  where  there  are  differ- 
ent firms  in  different  countries,  or  some  of  the  partners 
reside  in  one,  and  some  in  another  country,  there  are 


1  Holmes  V.  Remsen,  4  Johns.  Ch.  R.  485  ;  S.  C.  20  Johns.  R.  262, 
263;  Mihie  v.  Moreton,  6  Binn.  303,  374;  Livermore's  Diss.  142,  152  ; 
Blake  v.  Williams,  6  Pick.  R.  305  ;  Ino;raham  v.  Gcyer,  13  Mass.  R.  146, 
147;  Goodwin  v.  Jones,  3  Mass.  R.  517.  But  see  contra,  Orr  v.  Amory, 
11  Mass.  R.  25.     See  ante,  \  399,  note ;  post,  ^  566. 

2  5  Cranch,  R.  289,  302.  See  also  Ogden  v.  Saunders,  12  Wheaton, 
R.  61,  362,  363,  364. 

3  Ogden  V.  Saunders,  12  Wheaton,  R.  359  to  365. 


CH.  IX.]  PERSONAL   PROPERTY.  691 

still  more  embarrassing  difficulties  attendant  upon 
questions  of  foreign  bankrupt  assignments.  If  one 
partner  is  declared  a  bankrupt  under  a  foreign  com- 
mission, his  share  and  interest  only  in  the  funds  there 
can  pass  to  his  assignees,  as  against  the  partners  in 
another  country.  And  of  course  they  must  take,  sub- 
ject to  an  account  between  all  the  partners,  and  stand 
precisely  as  the  bankrupt  does,  on  a  settlement  of  all 
claims  as  between  debtor  and  creditor.^  Let  us  suppose 
the  case  of  a  partnership  in  the  British  West  Indies, 
and  in  England ;  and  one  of  the  partners  resides  in 
England  and  becomes  bankrupt ;  and  an  assignment  is 
made  ;  and  afterwards  a  British  West  India  creditor,  of 
the  firm,  attaches  a  debt,  due  to  the  firm  in  the  West 
Indies,  and  procures  a  judgment  and  satisfaction  there. 
Can  he  be  compelled  to  refund  the  same  upon  a  suit 
brought  by  the  assignees  against  him  in  England  ?  Sir 
William  Grant,  in  a  case  of  this  sort,  decided  in  the 
negative ;  and  on  that  occasion  seemed  to  have  great 
difficulty  in  reconciling  his  mind  to  the  decisions  upon 
the  more  general  questions  of  satisfaction  obtained 
abroad  by  a  creditor  in  case  of  a  sole  bankruptcy.  He 
held,  that  the  bankruptcy  of  the  partner  resident  in 
England  could  not  affect  the  partners  remaining  in  the 
West  Indies,  in  a  country  not  subject  to  the  bankrupt 
law,  so  as  to  devest  them  of  the  management  of  the 
partnership  concerns,  or  of  the  disposition  of  the  part- 
nership property.  If  they  applied  the  partnership  as- 
sets in  the  payment  of  the  partnership  debts  ;  or  if,  in 
a  legal  course  of  proceedings  against  them,  the  debts 
were  recovered  according  to  the  law  of  the  country,  no 


1  Harrison  v.  Sterry,  5  Cranch,  R.  289,  302. 


692  CONFLICT    OF    LAWS.  [cH.  IX. 

jurisdiction  could  exist  in  England  to  force  the  partner- 
ship, or  the  creditor  to  refund  what  he  had  so  received  or 
so  recovered.  Under  such  circumstances  the  foreign 
partners  and  foreign  creditors  must  be  left  to  their  gene- 
ral rights  and  remedies.'  The  same  doctrine  seems  to 
be  acknowledged  in  other  nations  where  there  are  part- 
nerships and  partners  resident  in  different  countries.^ 

§  423.  But,  whatever  may  be  the  rule  in  relation  to 
foreign  voluntary  assignments  or  foreign  bankrupt 
assignments,  for  the  benefit  of  creditors  generally,  there 
is  no  doubt  that  there  are  some  assignments,  which 
take  effect  by  mere  operation  of  law  in  foreign  coun- 
tries, and  are  admitted  to  have  universal  validity  and 
effect  upon  personal  property,  without  respect  to  its 
locality.^  Such  is  the  case  of  a  transfer  of  personal 
property  arising  from  marriage.  Thus,  a  marriage, 
contracted  by  citizens  of  Massachusetts,  is  a  gift  in  law 
to  the  husband  of  all  the  personal,  tangible  property  of 
the  wife,  and  operates  as  a  transfer  of  it  to  him,  wher- 
ever it  may  be  situate,  at  home  or  abroad.  And  the 
right,  thus  acquired  by  the  law  of  the  matrimonial 
domicil,  will  be  held  of  perfect  force  and  validity  in 
every  other  country,  notwithstanding  the  like  rule 
would  not  arise  in  regard  to  domestic  marriages  by  its 
own  municipal  code.'  '.This  doctrine  was  adverted  to  by 
Lord  Meadowbank^  in  a  very  important  case  already 
referred  to,  as  perfectly  clear  and  established.  "In 
the  ordinary  case,"  says  he,  "  of  a  transferrence  by  con- 
tract of  marriage,  when  a  lady  of  fortune,  having  a 
great  deal  of  money  in  Scotland,  or  stock  in  the  banks. 


1  Brickwood  v.  Miller,  3  Merivale,  R.  279. 

2  See  Merlin,  Repertoire,  Faillite,  et  Banqueroute,  ^  2,  art.  10,  p.  414. 

3  See  ante,  ^  398. 


CH.  IX.]  PERSONAL   PROPERTY.  693 

or  public  companies  there,  marries  in  London,  the 
whole  property  is,  ipso  jure,  her  husband's.  It  is  as- 
signed to  him.  The  legal  assignment  of  a  marriage 
operates  without  regard  to  territory  all  the  world 
over."  ^  Lord  Eldon,  on  several  occasions,  has  given 
this  doctrine  the  fullest  sanction  of  his  own  judgment, 
averring,  that  notice  was  not  even  necessary  to  give 
full  effect  to  such  a  title.^  The  same  doctrine  was 
fully  admitted  in  Remsen  v.  Holmes  ;  ^  and  it  is  treated 
by  elementary  writers  as  beyond  controversy.'*  We 
have  already  seen  that  foreign  jurists  press  the  doctrine 
to  its  fullest  extent.^ 

§  423  rt.  It  is  principally  in  cases  of  voluntary  as- 
signments, made  by  a  debtor  for  the  benefit  of  credit- 
ors, or  of  involuntary  assignments  under  the  Bankrupt 
laws  of  a  State  against  a  debtor  in  invitum,  that  ques- 
tions arise  respecting  the  conflicting  rights  of  creditors 
( Conciu'sus  creditonim,)  as  to  the  priorities  and  privileges 
in  the  distribution  and  marshalling  of  the  assets,  when 
they  are  insufficient  to  pay  all  the  debts  of  the  party. 
We  have  already  had  occasion  to  take  notice,  that 
generally  in  cases  of  movable  property  the  priorities 
and  privileges  are  to  be  adjusted,  and  the  distribution 
is  to  be  made,  according  to  the  law  of  the  domicil  of 
the  debtor,*'  founded  upon  the  notion,  that  there  all  his 
movable  property  is  in  contemplation  of  law  concen- 


1  Ante,  ^  59,  note  ;    Royal  Bank  of  Scotland  v.  Cuthbert,    1   Rose, 
Bank.  Cas.  Appx.  481.     See  ante,  ^  396,  397,  398. 

2  Selkrig  v.  Davis,  2  Rose,  Bank.  Cas.  97,  99  ;  Id.  S.  C.  291,  317. 

3  20  Johns.  R.  267. 

4  2  Bell,  Comm.  ^  1266,  p.  696,  697,  4th  edit.  ;    Id.   p.   080,  685,  686 
5th  edit. ;  Liverm.  Diss.  140,  ^  223. 

5  Ante,  ^  145,  146,  417. 

6  Ante,  §  323  to  ^  328. 


694  CONFLICT    OF   LAWS.  [CH.  IX. 

trated,  although  a  part  of  it  may  be  locally  situated 
elsewhere,  according  to  the  maxim  ;  Mobilia  non  hahent 
sequelam  ;  Mobilia  tamquam  ossihus  affixa  personce}  And 
in  relation  to  immovable  property,  the  distribution  is  to 
be  made  according  to  the  Z^.r  rei  sitce.^  Exceptions 
may  doubtless  exist,  "where  the  law  of  the  country,  in 
which  either  movable  or  immovable  property  is  situate, 
prescribes  a  different  rule,  which  must  then  be  obeyed.^ 
Similar  rules  will  govern  in  cases  of  voluntary  assign- 
ments by  debtors,  and  of  involuntary  assignments  un- 
der the  bankrupt  laws  of  a  State.  In  each  case  the 
Lex  loci  of  the  assignment,  or  the  bankruptcy  will  ordi- 
narily form  the  basis  of  the  priorities  and  privileges 
attaching  to  his  movable  property,  and  will  regulate 
the  distribution  thereof  among  his  creditors,  at  least  if 
that  is  the  place  of  his  domicil,  and  of  the  situs  of  the 
property.  If  the  property  is  immovable,  or  is  situate 
elsewhere,  the  Lex  loci  rei  sitw  will,  or  at  least  may 
govern  the  same."* 

§  423  ^.  Priorities  and  privileges  are,  indeed,  gene- 
rally treated  as  belonging  to  the  form  and  order  of  pro- 
ceedings, and  are  therefore  properly  governed  by  the 
Lex  fori ;  and  they  are  not  treated  as  belonging  to  the 
merits  and  matters  of  the  decision.  Rodenburg  says ; 
Primmn  utamur  vulcjaia  D.  D.  disiinctione,  qua  separantur 
m,  qum  litis  fonnam  concermint  ac  ordinationem,  separanlur 
ah  iis,  qiice  decisionem  aid  materiam.  Lis  ordinanda  secun- 
dum morem  loci,  in  quo  ventilatur.     Tit  sijudicati  exequendi 


1  Ante,  ^  362,  377,  378. 

2  Ante,  §  322  to  ^  328  ;  post,  ^  428. 

3  See  Rodenburg,  De  Divers.  Stalut.  tit.  2,  ch.'5,  ^  5,  6  ;  2  Boullenois, 
p.  37,  38  ;  post,  ^  550. 

4  Ante,  ^  322,  328,  ^  385  to  §  400,  ^  402  to  ^  416,  ^  412  to  §  422. 


en.  IX.]  PERSONAL    PROPERTY.  695 

causa  hona  dehitoris  distrahantiir,  qui  solvendo  sit,  executio 
peragatur  eo  hci,  uU  hona  sita  sunt,  aut  in  caiisam  jiidicati 
capiimtw\  Sin  cesserit  foro  debitor,  aut  propalam  desierit 
esse  solvendo,  tit  isti  mohilium  capioni,  aid  ulli  omnino  execu- 
tioni  non  sit  idtra  locus,  facta  jam  omnium  creditormn  con- 
ditione  pari,  disputatio  de  privilegiis,  aut  concursu  credi- 
tormn, veniat  instituenda,  iihi  debitor  habiierit  domicilium} 

§  423  c.  Matthoeus  (whose  opinions  have  been  aheady 
in  part  cited  in  another  phice,^)  holds,  that  hypotheca- 
tions of  movables  are  to  be  governed  by  the  law  of  the 
domicil  of  the  debtor ;  and  hypothecations  of  immov- 
ables by  the  Lex  loci  rei  sitce.  In  respect  to  priorities 
and  privileges  between  hypothecary  creditors  upon 
movables,  the  law  of  the  domicil  of  the  debtor  is  to 
govern  ;  and  in  respect  to  such  priorities  and  privileges 
between  hypothecary  creditors  upon  immovables,  the 
law  of  the  situs  rei,  unless  indeed  the  contest  solely 
concerns  their  rights  in  the  domicil  of  the  debtor. 
Quantum  ad'  leges,  secundum  quas  in  disputatione  de  pro- 
topraxia  judicandwn,  distinctio  adhibenda  est.  Si  bona  mobi- 
lia  dehitoris  in  divcrsis  provinciis  sint,  spcctandce  sunt  leges 
ejus  loci,  uhi  debitor  domicilium  habet.  Est  enim  vulgatum 
apud  doctores,  mohilia  sequi  personam,  et  idcirco  ccnseri  eo 
jure,  quod  obtinet,  uhi  domicilium  persona  habet.  Itaque  si 
in  loco  domicilii  valet  pignus  rei  mobilis  nudo  pacto  constitu- 
ttim,  manente  possessione  penes  debitorcm,  potior  erit  in  ing- 
nore  is,  ciii  ante  res  obligcda  est,  licet  no7i  sit  translata  in 
eum  possessio.  Et  si  creditor  aliquis  in  loco  domicilii  dehi- 
toris privilegium  inter  personates  liabeat,  gaudebit  eodem 
privilegio  in  ea  civitate,  in  qua  debitor  tabernam  hahuit  et 


1  Rodenburg,  De  Divers.   Statut.   tit.  2,  oh.   5,  ^16;    2  Boullenois, 
Ap|)x    p.  47,  48  ;  ante,  ^  325  c  to  325/,  and  note. 

2  Ante,  ^  325  i,  325  k. 


696  CONFLICT    OF   LAWS.  [CH.  IX. 

merces.  Contra,  si  in  loco  domicilii  mohilia  non  hahcant 
seqiielam,  nee  creditor  privilegiimiyfrustra  volet  uti  jure  alte- 
riiis  civitcdis,  in  qua  utriimque  contrario  modo  se  Mbere  per- 
sjyicit.  Quantum  vera  ad  prcedia  attinet,  sejoaranda  videtiir 
hjpotheca  ah  eo  privilegio,  quod  qids  inter  liypothecarios  ex- 
ercet.  In  cestimanda  hgpothcca  spectanda  sunt  ejus  terri- 
toriijura,  uhi  prcedium  situm  est.  Itaque  si  in  loco  domi- 
cilii delitoris  prcedia  ohligari  possint  citra  judicis  aiictorita- 
tem,  prcedia  vero  sita  sint  in  ea  provincia,  id>i  oppigneratio 
judicialis  desideratur,  frustra  ohtendes  locum  domicilii^  ad 
excludendum  secundum  creditorem,  cut  coram  judice  loci 
prcedium  pignori  ncxum  est.  Quod,  si  idrique  fundus  rith 
oppigneratus  sit,  disputetur  autcm  solummodo  de  privilcgio, 
quod  alter  inter  hypothecarios  in  loco  domicilii  dehitoris  ha- 
bere se  dicit,  turn  locus  domicilii  spectandus  videtur :  quia 
privilegium  illud  'personam  concernit,  fundum  autem  pigne- 
7'atum  non  afficit} 

§  423  d.  Mr.  Burge  maintains  a  similar  opinion, 
taking  a  distinction  between  ordinary  liens  and  the 
priorities  between  creditors.  "The  vendor's  lien,"  says 
he,  "  on  the  movables  sold,  and  the  right  to  stop  them 
in  transitu  for  the  payment  of  the  price,  are  privileges, 
•which  attach  to  the  subject  sold,  and  are  governed  by 
the  Lex  loci  contractus.  They  are  distinguished  from 
the  preferences  which  a  creditor  may  claim  on  the 
estate  of  a  debtor,  when  it  is  distributed  under  an  exe- 
cution sale,  or  general  concursus  of  his  creditors.  The 
latter  depend  not  on  the  Lex  loci  contractus,  but  on  that 
of  the  phice  where  the  movable  estate  is  fictione  juns 
considered  to  be  situated,  namely,  in  the  domicil  of  its 


1  INIatlhaeus,  de  Auctionibus,  Lib.  1,  cap.  21,  ^  10,  n.  35,  p.  294,  295  ; 
Id.  n.  41,  p.  298,  299. 


CH.  IX.]  PERSONAL   PROPERTY.  697 

owner.  The  Lex  loci  contractus,  although  it  is  properly 
invoked  as  between  the  parties  to  the  contract,  yet  it 
is  considered  unjust  to  give  it  effect  against  third  par- 
ties, the  creditors." ' 

§  423  e.  Mr.  Bell  adopts  the  doctrine  in  its  fullest 
extent,  that  an  assignment  in  bankruptcy  conveys  all 
the  movable  property  of  the  bankrupt,  wherever  it  may 
be,  and  it  is  to  be  distributed  according  to  the  law  of 
the  place  where  the  debtor  has  his  domicil,  and  the 
proceedings  in  bankruptcy  are  had.  But  in  relation  to 
immovable  property,  that  it  is  to  be  distributed  and 
administered  according  to  the  territorial  law.  His 
language  is  :  "  The  great  rule  on  which  the  whole  of 
the  doctrine  relative  to  the  international  effect  of  bank- 
ruptcy depends,  has  been  completely  fixed  in  all  the 
three  kingdoms  upon  a  general  principle  of  the  law  of 
nations ;  namely,  that  the  personal  estate  is  held  as 
situate  in  that  country  where  the  bankrupt  has  his 
domicil :  and  that  it  is  to  be  administered  in  bank- 
ruptcy according  to  the  rules  of  the  law  of  that  coun- 
try, just  as  if  locally  placed  within  it.  The  consequence 
of  .fixing  this  rule  is,  that  a  commission  of  bankruptcy 
in  England,  or  in  Ireland,  and  the  assignment  following 
on  it,  or  a  sequestration  in  Scotland,  and  the  convey- 
ance to  the  trustee,  have  the  effect  of  transferring  to 
the  trustee  or  assignees  the  whole  personal  estate  of 
the  bankrupt ;  that  this  transferrence  defeats  all  pre- 
ferences attempted  to  be  obtained  by  the  diligence  of 
the  law  of  the  country  where  such  estate  happens  to 
be  placed,  or  by  any  voluntary  conveyance  of  the  bank- 
rupt, after  the  period  when  the  effect  of  the  proceed- 


I  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  770  ;  Id. 
p.  778,  779  ;  ante,  ^  327,  note. 
CONFL.  59 


698  CONFLICT    OF    LAWS.  [CH.  IX. 

ings  under  the  bankruptcy  attaches  to  the  funds."  ^ 
And  again;  "Another  great  point  in  this  doctrine  is, 
what  effect  shall  be  allowed  in  Scotland  to  a  different 
decision  in  any  foreign  country  from  that  which  has 
been  adopted  in  these  islands?  Let  it  be  supposed, 
for  example,  that  effects  of  the  bankrupt  are  in  a  coun- 
try, in  which  the  sequestration  and  the  conveyance  to 
the  trustee  are  held  to  be  of  no  force,  and  where  pre- 
ference is  given  to  the  diligence  of  the  country  in 
which  the  effects  are  situate;  —  Is  the  creditor,  who 
recovers  payment  under  such  local  rule,  obliged  to  pay 
over  to  the  trustee  in  this  country,  for  general  distribu- 
tion, the  money  he  has  received  ?  And  this,  again, 
resolves  into  two  questions,  —  (1.)  Whether  the  cre- 
ditor can  claim  for  any  balance  without  having  commu- 
nicated what  he  has  received?  and  (2.)  Whether  he  is 
liable  to  an  action  for  restitution  ?  In  England,  where 
there  is  no  provision  by  statute  for  regulating  this  mat- 
ter, it  is  held,  —  (1.)  That  an  English  creditor,  who, 
having  notice  of  the  bankruptcy,  makes  affidavit  in 
England,  in  order  to  proceed  abroad,  cannot  retain 
against  the  assignees  what  he  recovers.  (2.)  That  a 
creditor  in  the  foreign  country  would  not,  if  preferred 
by  the  laws  of  that  country,  be  obliged  to  refund  in 
England :  and  (3.)  That,  at  all  events,  such  a  creditor 
cannot  take  advantage  of  the  bankrupt  laws  in  Eng- 
land, without  communicating  the  benefit  of  his  foreign 
proceedings.  In  Scotland,  there  is  an  express  provi- 
sion in  the  statute  relative  to  payments  and  preferences 
abroad ;  the  policy  of  which  it  is  proper  to  explain. 
As  the  jurisdiction  of  the   Court  of  Session  does  not 


1  2  Bell,  Comm.  §  1266,  p.  684,  685,  4th  edit. ;  Id,  p.  681,  682,  5th 
edit. 


CH.  IX.]  PERSONAL    PROPERTY.  699 

reach  foreign  countries,  wherever  the  principle  of  the 
law  of  nations  does  not  operate,  or  has  been  evaded,  it 
is  provided,  —  (1.)  That  the   creditor,  who,  after  the 
first  deliverance  on  the  petition  for  secjuestration,  shall 
obtain  payment  or  preference  abroad,  shall  be  obliged 
to  communicate,  and  assign  the  same  to  the  trustee  for 
behoof  of  the  creditors,  before  he  can  draw  any  divi- 
dend out  of  the  funds  in  the  hands  of  the  trustee ;  and, 
(2.)  That,  in  all  events,  whether  he  claims  under  the 
sequestration  or  not,  he  shall  be  liable  to  an  action 
before  the  Court  of  Session,  at  the  instance  of  the  trus- 
tee, to  communicate  the   said  security  or  payment,  in 
so  far  as  the  jurisdiction  of  the  court  can  reach  him. 
It   may,  however,  as    already    observed,   be    doubted, 
whether  this   enactment,  in  so  far  as  it  exposes  a  cre- 
ditor to  a  challenge,  even  where  he  does  not  claim  under 
the  sequestration,  might  be  held  to  include  foreign  cre- 
ditors, not  apprised  of  the  bankruptcy  and  procedings 
in  this  country,  but  who  having  recovered,  in  the  usual 
way,  the  property  of  their  debtor  abroad,  should  have 
come  afterwards  to  Scotland.     Recently  the  question 
occurred  under  these  enactments,  whether  a  local  sta- 
tute in  one  of  our  colonies  abroad,  which  was  said  to 
proceed  on  views  of  local  utility,  did  not  so  far  qualify 
the    sequestration   statute   of  this    country,   that   the 
foreign  creditors  should  be  entitled  to  retain  the  pre- 
ference they  had  obtained  ?     But  the  Court  held,  that 
the  preference   could  not  be   supported.     As  to   real 
estate,  the  estate  in  land,  or  connected  with  land,  there 
is  a  difference  of  principle  very  remarkable.     The  real 
estate  is,  not  like  the  personal,  regulated  by  the  law  of 
the  domicil ;  but  by  the  territorial  law.     A  real  estate 
in  England  is  not  held  to  be  under  the  disposition  of 
the  bankrupt  laws  of  Scotland,  if  the  proprietor  be  a 


700  CONFLICT   OF   LAWS.  [CH.  IX. 

trader  there.  Nor  is  an  heritable  estate  in  Scotland 
affected  by  the  commission  of  the  English  law.  And 
yet  the  spirit  and  policy  of  the  laws,  considered  inter- 
nationally, should  open  to  the  creditors  of  a  bankrupt 
in  either  country  the  power  of  attaching  his  real  es- 
tates." ' 

§  423/.  In  regard  to  voluntary  assignments  for  the 
benefit  of  creditors  with  certain  preferences,  they  must 
(as  has  been  already  stated,^)  as  to  their  validity  and 
operation,  be  governed  by  the  Lex  loci  contractus.  If 
they  are  valid  there,  full  operation  will  ordinarily  be 
given  to  them  in  every  other  country  where  the  matter 
may  come  into  litigation  and  discussion.  But  it  is  a 
very  different  question,  whether  they  shall  be  permitted 
to  operate  upon  property  locally  situated  in  another 
country,  whether  movable  or  immovable,  by  whose  laws 
such  a  conveyance  would  be  treated  as  a  fraud  upon 
the  unpreferred  creditors.  That  question  was  discussed 
in  the  case  already  alluded  to,  where  an  assignment, 
made  in  Alabama,  giving  preferences  to  certain  credit- 
ors, came  collaterally  under  discussion  in  Louisiana, 
by  whose  laws  such  an  assignment  would  be  treated  as 
a  fraud.  On  that  occasion  the  Court  said  :  "  We  find 
no  difficulty  in  assenting  to  the  proposition,  that  con- 
tracts entered  into  in  other  States,  as  it  relates  to  their 
validity  and  the  capacity  of  the  contracting  parties,  are 
to  be  tested  here  by  the  Ze.v  loci  celehrati  contractus. 
This  Court  has  often  recognized  that  doctrine,  as  well 
settled.  When  a  contract  is  entered  into  in  Alabama, 
in  conformity  to  the  local  law,  to  have  its  effects  and 


1  2  Bell.  Comm.  h  1266,  p.  689,  690,  4th  edit. ;  Id.  p.  685,  686,  5th 
edit.     See  Lord  Eldon's  Remarks  in  Selkrig  v,  Davis,  2  Rose,  R.  311. 

2  Ante,  ^  25U  a. 


CH.  IX.]  PERSONAL   PROPERTY.  701 

execution  there,  it  is  clear  the  courts  of  this  State  can- 
not declare  its  nullity  on  the  ground,  that  such  a  con- 
tract would  not  be  valid  according  to  our  system  of 
jurisprudence.  Such  would  be  the  case,  even  if  one  of 
the  contracting  parties,  or  both,  were  not  citizens  of 
Alabama.  If  Andrews,  for  example,  had  been  a  citizen 
of  Louisiana,  having  creditors  and  effects  both  here  and 
in  Alabama,  had  gone  over  to  that  State,  and  trans- 
ferred a  portion  of  his  property  there  to  certain  pre- 
ferred creditors,  such  a  transaction,  as  to  its  legality, 
would  depend  upon  the  law  of  Alabama.  But  if  such 
a  citizen  of  Louisiana  should  immediately  afterwards 
seek  to  avail  himself  of  the  benefit  of  our  insolvent 
laws,  a  different  question  would  present  itself  Al- 
though our  courts  might  not  be  authorized  to  annul 
such  contracts,  as  to  their  effects  between  the  parties  ; 
yet  they  might  well  inquire,  whether  it  was  not  the 
intention  of  the  legislature  to  afford  the  protection  of 
the  insolvent  laws  to  such  only  as  shall  have  abstained 
from  giving  an  undue  preference  to  certain  creditors, 
in  derogation  of  that  vital  principle  of  our  system,  that 
the  property  of  the  debtor  forms  the  common  pledge  of 
his  creditors,  and  although  such  preferences  may  be 
tolerated  by  the  Lex  loci.  If  the  legislature  has  thought 
proper  to  declare  such  a  condition  as  one  upon  which 
shall  depend  the  right  to  claim  the  benefit  of  the  in- 
solvent laws,  which  it  is  not  denied  they  had  an  unques- 
tionable right  to  do,  then  there  is  an  end  to  the  argu- 
ment, unless  it  can  be  shown,  that  the  mere  residence 
of  the  party  in  another  State  dispenses  him  from  a 
compliance  with  the  creditor." ' 


1  Andrews  v.  His  Creditors,  11  Louis.  R.  476,  477.     See  also  2  Bell, 
Coram.  ^  12GG,  p.  684,  685,  686,  4th  edit. ;  Id.  p,  681,  682,  683,  5th  edit. 
59* 


702  CONFLICT   OF   LAWS.  [CH.  IX. 

§  423  g.  These  are  by  no  meams  the  only  cases  of 
a  conflict  of  laws,  or  of  rights  growing  thereout,  touching 
personal  or  movable  property ;  and  which  ought  to  ad- 
monish us  of  the  danger  and  difficulty  of  attempting  to 
lay  down  universal  rules  on  such  complicated  subjects. 
By  the  laws  of  many  of  the  nations  of  continental  Europe 
in  cases  of  collision  of  ships  by  accident,  without  any 
fault  on  either  side,  the  loss  is  to  be  sustained  by  a  con- 
tribution by  both  ships.^  By  the  law  of  England  in 
such  a  case,  there  is  no  contribution  whatsoever  \  but 
each  party  is  to  bear  his  own  loss.  Res  perit  domino.^ 
Now,  let  us  suppose,  that  such  a  collision  takes  place 
upon  the  high  seas,  beyond  any  territorial  jurisdiction, 
between  an  English  ship  and  a  foreign  continental  ship, 
whose  laws  divide  the  loss,  and  both  or  either  of  the 
ships  is  injured  thereby.  How  is  the  loss  to  be  borne  ? 
Will  it  make  any  difference,  whether  the  proceeding 
against  the  ship  or  owners  for  redress  is  in  England,  or 
in  the  proper  continental  court  ?  If  the  right  depends 
upon  the  law  of  the  place  where  the  proceedings  are 
had  against  the  ship  or  the  owner,  then  there  will  be  no 
reciprocity  in  the  operation  of  the  rule.  In  a  case  so 
confessedly  novel  in  its  presentation,  it  will  be  found 
very  difficult  to  affirm  any  ground  of  principle,  upon 
which  the  law  of  the  one  country,  rather  than  that  of 
the  other,  ought  to  prevail.^ 


1  Story  on  Bailm.  (^  G08  ;  Peters  v.  Warren  Insur.  Comp'y,  14  Peters, 
R.  94. 

2  Story  on  Bailm.  ^  608,  610. 

3  The  very  question  was  recently  presented  at  Havre,  in  France,  in  the 
case  of  the  steamer  ship  James  Watt,  an  English  ship,  which  was  seized 
in  France  for  having  by  collision  run  down  a  French  ship,  at  sea.  The 
Court  of  Rouen,  it  is  said,  decided  against  the  right  to  seize  and  detain 
Jier.     But  the  ground  of  the  decision  is  not  stated.     See  also  Abbott  on 


CH.  IX.]  PERSONAL    PROPERTY.  703 

§  423  li.  Considerations  of  an  analogous  nature  may 
be  presented  in  cases  of  torts,  committed  on  the  high 
seas,  and  in  other  extra-territorial  places,  by  the  subjects 
of  one  nation  upon  vessels,  or  other  movable  property, 
belonging  to  the  subjects  of  another  nation,  where  the 
laws  of  these  nations  are  different,  touching  either  the 
nature  and  character  and  consequences  of  the  tort,  or 
the  rule  of  damages  applicable  thereto.  It  is  not  easy 
to  say,  in  such  cases,  what  laws  ought  to  govern.  The 
most  that  can  with  any  probability  be  stated,  is  that,  in 
the  absence  of  any  general  doctrine  to  the  contrary, 
either  each  nation  would,  in  respect  to  the  case  w^hen 
pending  in  its  own  tribunals,  follow  its  own  laws;'  or 
would  apply  the  rule  of  reciprocity,  granting  or  refusing- 
damages,  according  as  the  law  of  the  foreign  country, 
to  which  the  injured  ship  belonged,  would,  grant  or 
withhold  them  in  the  case  of  an  injured  ship  belonging 
to  the  other  nation.^  The  rule  of  reciprocity  is  often 
applied  in  cases  of  the  recapture  of  ships  from  the  hands 
of  a  public  enemy.^ 


Shipp.  by  Shee,  p.  184,  note  z,  the  case  of  the  Maria,  there  stated.     See, 
also,  3  Hagg.  Adm.  R.  169  ;  Id.  184  ;  Id.  244.     See,  also,  The  General 
Steam  Navigation  Co.  v.  Guillen,  11  Mees.  &  Wels.  877. 
^  See  Percival  v.  Hickey,  18  Johns.  R.  257, 

2  The  Girelamo,  3  Plagg.  Adm.  R.  169. 

3  The  Santa  Cruz,  1  Rob.  R.  50 ;  2  Wheat.  R.  Appx.  44,  45;  The 
Adeline,  9  Cranch,  R.  244.  In  the  case  of  the  Vernon,  1  W.  Robinson, 
New  Adm.  R.  316,  which  was  a  case  of  collision  between  a  British  ship, 
havingon  board  a  licensed  pilot,  and  a  foreign  ship,  the  British  ship's  pilot 
being  in  fault,  Dr.  Lushington  held  the  owners  of  the  British  ship  not 
responsible  for  the  damage,  upon  the  ground  that  the  foreign  ship  seeking 
the  remedy,  must  take  it  according  to  the  law  of  the  country  where  the 
suit  is  brought.  Qaasre,  if  this  was  a  case  within  the  meaning  of  the 
rule,  did  the  statute  apply  to  foreign  ships  or  only  to  British  ships? 


704  CONFLICT    OF  LAWS.  [CH.  X. 


CHAPTER  X. 


REAL    PROPERTY. 


§  424.  Having  disposed  of  the  more  important  ques- 
tionsj  which  have  arisen  respecting  personal  property, 
we  are  next  led  to  the  consideration  of  the  operation  of 
foreign  law  in  regard  to  real  or  immovable  property. 
And,  here,  the  general  principle  of  the  common  law  is, 
that  the  laws  of  the  place  where  such  property  is  situ- 
ate exclusively  govern  in  respect  to  the  rights  of  the 
parties,  the  modes  of  transfer,  and  the  solemnities  which 
should  accompany  them.^  The  title,  therefore,  to  real 
property  can  be  acquired,  passed,  and  lost  only  accord- 
ing to  the  Lex  rei  sitce.  This  is  generally,  although  (as 
we  shall  presently  see)  not  universally,  admitted  by 
courts  and  by  jurists,  foreign,  as  well  as  domestic. 
Paul  Voet  states  the  rule  in  a  brief  but  clear  manner ; 
Ut  immoUUa  statiitis  loci  regantur,  uhi  sita.~  He  adds  in 
another  place.  Quid  si  itaqiie  contentio  de  aliquo  jure  in  re, 
seu  ex  ipsa  re  descendente,  vel  ex  contractu,  vel  actione  per- 


'  See,  on  the  subject  of  this  chapter,  2  Burge,  Comm.  on  Col.  and  For. 
Law,  Pt.  2,  ch.  4,  p.  840  to  p.  870  ;  4  Burge,  Comm.  on  Col.  and  For. 
Law,  Pt.  2,  ch.  4,  ^  5,  p.  150,  &c.  ;  Id.  ch.  5,  n.  11,  p.  171,  217  ;  Id. 
ch.  12,  p.  576  ;  Fcelix,  Conflit  des  Lois,  Revue  Etrang.  et  P'ranc.  Tom. 
7,  1740,  ^  27  to  §  37,  p.  216  to  p.  230 ;  Id.  p.  307  to  312. 

2  P.  Voet,  De  Stat.  ^  9,  ch.  1,  n.  3,  p.  253,  edit.  1715  ;  Id.  p.  307, 
edit.  1661.  —  Yet  we  shall  see,  that  Paul  Voet  adopts  some  strange  no- 
tions as  to  the  forms  and  solemnities  of  instruments  of  transfer  of  real 
estate,  whether  inter  vivos  or  testamentary,  holding,  tljat  the  lex  loci  ac- 
tus, and  not  the  lex  loci  rei  sitae,  ought  to  govern.     Post,  \  442. 


CH.  X.]  REAL   PROPERTY.  705 

sonali,  sed  m  rem  scriptd?  An  spedahUur  loci  stcdutum, 
uU  dominus  hahet  domiciUum,  cm  statutmn  rei  sitce  ?  Res- 
pondeo ;  Stcdutum  rei  sitce}  Sir  William  Grant  lays 
down  the  rule  in  very  expressive  terms.  "  The  validity 
of  every  disposition  of  real  estate,"  says  he,  "must  de- 
pend upon  the  law  of  the  country,  in  which  that  estate 
is  situated."  ~  The  same  rule  would  also  seem  equally 
to  apply  to  express  liens  and  to  implied  liens  upon  im- 
movable estate.^ 

§  425.  And  here  it  may  be  proper  to  advert  a  little 
more  particularly  to  some  of  the  definitions  of  foreign 
jurists,  in  regard  to  personal  laws  and  to  real  laws. 
We  have  already  seen,  that  laws  purely  personal  are 
those  which  solely  affect  the  person,  without  any  refer- 
ence to  property.'  Laws  purely  real,  directly  and  in- 
directly regulate  property,  and  the  rights  of  property, 
without  intermeddling  with,  or  changing  the  state  of  the 
person.^  There  are  other  laws,  again,  which  are  deemed 
both  personal  and  real,  containing  a  mixed  operation 
upon  persons  and  property,  and  which  are  therefore 


1  p.  Voet,  De  Slatut.  §  9,  ch.  1,  n.  2,  p.  253,  edit.  1715  ;  Id.  p.  305, 
edit.  1661. 

2  Curtis  V.  Hutton,  14  Ves.  jr.  537,  .541  ;  S.  P.  Chapman  zj.Ptobertson, 
6  Paiae  R.  627,  630  ;  Elliot  v.  Lord  Minto,  6  Madd.  R.  16  ;  Birtwhistle 
V.  Vardill,  5  Barn.  &  Cresw.  438  ;  S.  C.  9  Biigh,  R.  32  to  88 ;  Potter  v. 
Titcomb,  22  Maine,  300  ;  post,  §  428  to  ^  444. 

3  See  1  BouUenois,  p.  683  et  seq.  689,  818  ;  Rodenburg,  De  Divers. 
Stat.  tit.  2,  ch.  5,  ^  16  ;  2  BouUenois,  Appx.  47  ;  1  Hertii,  Opera,  De 
Collis.  Le?.  H>  n.  64,  p.  150  ;  P.  Voet,  De  Stat.  §  9,  ch.  1,  n.  2,  p.  253, 
edit.  1715  ;  Id.  p.  307,  edit.  1661  ;  ante,  §  322  to  ^  328  ;  Id.  s^  363  to 
§  374;  1  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  1,  ch.  1,  p.  25,  26  ; 
Curtis  V.  Hutton,  14  Ves.  jr.  537,  541  ;  Elliott  v.  Lord  Minto,  0  Madd.  R. 
16. 

4  1  BouUenois,  Prin.  Gen.  10,  p.  4. 

5  1  BouUenois,  Prin.  Gen.  22,  p.  6  ;  Id.  Pr.  G6n.  21,  p.  7.  See  P. 
Voet,  De  Slat.  ^  4,  ch.  2,  n.  4,  p.  134,  135,  edit.  1061. 


706  CONFLICT    OF   LAWS.  [CH.  X. 

called  mixed/  Thus,  a  particular  law,  wliicli  shall 
authorize  a  minor  or  other  person,  ordinarily  incapaci- 
tated, to  dispose  of  property  under  particular  circum- 
stances, would  be  deemed  a  mixed  law ;  because,  so  far 
as  it  affects  the  particular  capacity  of  a  person,  it  is 
personal,  and  so  far  as  it  enables  him  to  do  a  particular 
act  respecting  property,  it  is  real.-  In  illustration  of 
these  distinctions  Boullenois  considers  the  Law,  known 
as  the  Sencdus-consultiuu  Velleiamim,  prohibiting  married 
women  from  making  contracts,  as  purely  personal ;  a 
law  declaring  that  no  person  of  full  age  shall  devise 
more  than  a  third  or  fourth  part  of  his  property,  as 
purely  real ;  and  a  law  allowing  a  minor,  (otherwise  in- 
capacitated) when  married,  to  make  a  testament  or  do- 
nation in  favor  of  his  wife,  as  mixed.^  These  distinc- 
tions are  very  important  in  examining  the  doctrines  of 
foreign  jurists,  as  they  often  enter  very  deeply  into  the 
elements  of  their  particular  opinions.^ 

§  426.  Now,  in  regard  to  laws  purely  real,  Boullenois 
lays  down  the  rule  in  the  broadest  terms,  that  they  go- 


^  1  Boullenois,  Prin.  G6n.  15,  16,  p.  5. 

2  Ibid. 

3  1  Boullenois,  Pr.  G6n.  14,  15,  26,  p.  5,  G,  7  ;  Id.  Observ.  2,  p.  25  to 
28;  Id.  Observ.  16,  p.  206,  Observ.  23,  p.  456,  457,  477,  4S8  ;  2  Boul- 
lenois, Observ.  32,  p.  11.  —  This  definition  of  mixed  laws  is  given  by 
Boullenois,  who  has  drawn  it  from  Rodenburg.  But  it  is  very  different 
(as  he  informs  us)  from  the  sense,  in  which  D'Argentr6,  Burgundus,  and 
Voet  use  the  same  phrase.  1  Boullenois,  Prin.  G6n.  16,  p.  5  ;  Id.  Ob- 
serv. 5,  p.  122  to  140;  Rodenburg,  De  Div.  Stat.  tit.  1,  eh.  2  ;  1  Boul- 
lenois, Observ.  2,  p.  25  to  p.  29  ;  Id.  Observ.  3,  p.  29  to  48.  See,  also, 
1  Froland,  Mem.  ch.  6,  p.  114. 

4  J.  Voet  has  devoted  a  whole  title  to  the  subject  of  personal,  real,  and 
mixed  laws,  which  will  reward  the  diligence  of  the  student  in  a  thorough 
perusal.  J.  Voet,  ad  Pand.  Tom.  1,  Lib.  1,  tit.  4,  p.  2,  p.  38,  et  seq. 
The  same  subject  is  elaborately  discussed  by  Froland.  1  Froland,  Mem. 
ch.  4,  p.  49.  ch.  5,  p.  31,  ch.  6,  p.  114. 


CH.  X.]  REAL    PROPERTY.  707 

vern  all  real  property  within  the  territory,  but  have  no 
extension  beyond  it.  Les  lois  reelles  n' out  point  d' exten- 
sion directe  ne  indirecte  hors  la  jurisdiction  et  la  do^ninaiion 
du  lepslafew'}  In  regard  to  mixed  laws  he  lays  down 
the  rule  expressively,  that  of  right  they  act  only  upon 
real  property  within  the  territory,  to  which  the  persons 
are  subject;  but  that  sometimes  they  act  upon  real 
property  situate  elsewhere ;  and  then  it  is  pnly,  because 
the  laws  are  conformable  to  each  other,  and  by  a  sort 
of  kindred  title  only,  {a  titre  de  jyat^rnite  sculement.y 
Rodenburg  lays  down  a  like  rule  in  regard  to  real  laws 
(dismissing  as  unnecessary  the  class  of  mixed  laws ;) 
Statida  realia  inter  et  ijersonalia  hoc  interest,  quod  ilia,  in 
res  scripta,  territorii  siii  concliidantur  metis,  hcec  extra  eas 
mm  et  effectiim  'protendaiii}  Paul  Voet  contends,  that 
no  personal  laws  can  regularly  extend  to  immovable 
property  situate  in  a  foreign  country  ;  Non  tanien  statu- 
tum  personate  sese  regidariter  extendet  ad  bona  immohilia 
alibi  sita ;  ^  and  he  treats  it  as  utterly  unimportant, 
whether  it  assume  to  do  so  directly  or  indirectly,  openly 
or  consequentially.  Neque  hie  distinguam,  cum  lex  non 
distinguat,  an  sese  extendut  statidum  directe  ad  bona  cxtra- 
territorium  statuentimn  sita,  an  indirect^,  an  projyalam,  an 


1  1  Boullenois,  Pr.  G6n.  27,  p.  7;  Id.  230. —Froland  lays  down  the 
rule  ia  even  more  brief  terms.  Le  statut  r6el  ne  sort  point  de  son  terri- 
toire.  1  Froland,  Mem.  156.  And  he  applies  the  same  rule  to  mixed 
statutes.     Id.  157. 

2  1  Boullenois,  Prin.  G^n.  20,  21,  p.  6  ;  1  Boullenois,  Observ.  16, 
p.  223,  224. 

3  Rodenburg,  De  Div.  Statut.  tit.  1,  ch.  3;  2  Boullenois,  Appx.  p.  7  ; 
1  Boullenois,  145  ;  Id.  Observ.  9,  p.  152  ;  Id.  230. 

4  P.  Voet,  ad  Stat.  ^  4,  ch.  2,  n.  6,  p.  123  ;  edit.  1715  ;  Id,  p.  138, 
edit.  1661. 


708  CONFLICT    OF   LAWS.  [CH.  X. 

per  conseqiientiam.      Cum  non  sint  indirede,  in  fraudem 
legis  aid  statuU permittenda,  qiice  direct^  sunt  prokihita} 

§  426  a.  Joha  Yoet  resolutely  maintains  the  same 
opinion.^  D'Argentre  holds  the  following  language. 
Quce  realm,  aid  mixta  sunt,  hand  duhie  locorum  ct  reruni 
sitiim  sic  spectant,  id  aliis  legihus,  qiiani  territorii,  judicari 
non  possint.^  Huberus,  after  remarking,  that  the  foun- 
dation of  the  general  doctrine  is  the  subjection  of  every 
man  to  the  laws  of  a  country,  so  long  as  he  continues  to 
act  there,  which  makes  his  act  there  valid  or  invalid, 
according  as  those  declare  it  invalid,  proceeds  to  say, 
that  this  reasoning  does  not  apply  to  immovable  pro- 
perty, which  does  not  depend  upon  the  mere  will  of  the 
owner ;  but  so  far  as  certain  characters  are  impressed 
upon  it  by  the  law  of  the  country,  where  it  is  situate, 
these  characters  remain  indelible  in  that  country,  what- 
ever dispositions  the  laws  of  other  countries,  or  the  acts 
of  private  persons,  may  ordain  otherwise  or  contrary 
thereto.  Nor  would  it  be  without  great  confusion  and 
prejudice  to  the  country,  where  the  immovable  property 
is  situate,  that  its  own  laws  respecting  it  should  be 
changed  by  such  dispositions.  Fundamentum  iiniversce 
hvjus  doctrinw  diximiis  esse,  et  tenemiis,  suhjectionem  Jiomi- 
num  infra  Leges  cuj usque  territorii,  quamdiu  illic  agunt, 
quw  facit,  id  actus  ah  initio  validus  aid  nuUus,  alihi  quoqiie 
valere  aid  non  valere  non  nequeat.  Scd  hccc  ratio  non  con- 
venit  rehus  immohilihus,  quando  illw  spectantur,  non  id  de- 


1  p.  Voet,  De  Stat.   ^  4,  ch.  2,  G,  7,  p.  123,  124,  edit.  1715;  post, 

2  J.  Voet,  ad  Pand.  Tom.  1,   Lib.  1,   tit.  4,  ^  7,  p.  40;  ante,  i^*  54  a  ; 
post,  ^  433  a. 

3  D'Argentr.    De  Briton.   Leg.  Art.  218.  Gloss.  6,  n.  8,  Tom.  p.  CjO  ; 
post,  ^  439  ;  Livermore's  Dissert.  ^  97,  p.  77. 


CH.  X.]  REAL   PROPERTY.  709 

pendentes  a  libera  dispositione  ciijusque  patrisfamilias,  verurn 
qiicdenus  ccrtce  notce  lege  cujusqne  Beip.  uhi  sita  stmt,  ilUs 
impressce  reperiimtur ;  hce  notce  manent  indelehiles  in  ista 
Repid)lica,  qidcqidd  aliarmn  Civitatum  Leges,  aut  privato- 
rum  dispositiones,  seciis  aid  contra  statuant ;  nee  enim  sine 
magna  confusione  pra^jiidicioque  Reip.  id)i  sitce  sunt  res  soli^ 
Leges,  de  illis  latce,  dispositionihus  istis  midari  possent.^ 
He  adds  in  another  place ;  Comniimis  et  recta  sententia 
est,  in  rebus  immobilibus  servandiim  est  jus  loci,  in  quo  bona 
sunt  sita? 

§  426  b,  Christinseus  takes  the  common  distinction 
in  various  places  between  movable  property  and  im- 
movable property,  alleging,  that  it  is  observed,  as  a 
general  rule,  that  movable  property  is  governed  by  the 
law  of  the  domicil,  and  real  property  by  the  law  of  the 
situs  rei.  JJbi  pro  regida  generali  servatum  fidt,  quod  bona 
mobilia  sequi  et  regulari  debent  secundum  statidi  loci  domi- 
cilii ejus,  ad  quern  pertinent  vel  spectant,  immobilia  vero  juxta 
statuta  locorum,  id>i  ilia  sunt  sita,  id  communiter  tenent  In- 
terpretes,  licet  dicta  regida  nan  semper  locum  liabeat? 


1  Huberus,  De  Conflict  Leg.  Lib.  1,  tit.  3,  ^  15 ;   post,  §  413. 

2  Huberus,  Tom.  1,  P.  1,  Lib.  3,  tit.  13,  21,  s.  De  Success,  ab  Lites. 
p.  278.     See  post,  ^  443,  443  a.  \  476. 

3  ChristiniBus,  Tom.  2,  Decis.  5,  n.  1,  2,  3,  4,  p.  7. —  Mr.  Foelix  on 
this  subject  says  :  "  Cette  loi  r^elle  r^git  les  biens  situ^s  dans  I'eiendue 
du  terriioire,  pour  lequel  elle  a  6t6  rendue,  en  excluant  I'application  de  la 
loi  personnelle  du  propri6taire,  ou  de  celle  du  lieu  ou  I'acte  a  6t6  pass6  ; 
(Nous  parlerons  plus  bas  de  I'application  de  cette  derniere  loi)  ;  mais 
aussi  les  effets  de  cette  loi  ne  s'^tendent  jamais  au  del^  des  limites  du  ter- 
ritoire.  Telle  est  la  r^gle  reconnue  par  toutes  les  nations  et  professee  par 
les  auteurs.  Nous  citerons  Burgundus,  (Tract.  1,  n"^  4,  11,  12,  et  14,) 
Rodenburg,  (Tit.  1,  chap.  2,)  Paul  Voet,  (De  Statutis,  sect.  4,  cap.  2, 
n<"4  et  6,)  Jean  Voet,  (Ad  fF.  Tit.  destat.  n"  3,)  Abraham  £\  Weasel,  (Art. 
16,  n"  19,)  Christin.  (Decisiones,  vol.  2,  tit.  1,  dec.  3,  n"  2,)  Boulletiois, 
(Aux  endroits  cities  au  n"  24  ci-dessus,  et  t.  1,  p.  107,)  Hert.  (Sect.  4, 
^  9,)  Huber.  (N°  15,)  Cramer,  (Observationes  Juris  Universi,  torn.  V.  obs. 

CONFL.  60 


710  CONFLICT    OF    LAWS.  [CH.  X. 

§  427.  But  it  is  wholly  unnecessary  to  repeat  at 
length  the  opinions  of  foreign  jurists,  since  in  the  main 
proposition  they  generally,  although  not  universally, 
concur,  (for  some  of  them  insist  upon  certain  excep- 
tions, to  which  we  may  hereafter  allude,)  that  the  law 
of  the  situs  exclusively  governs  as  to  immovable  pro- 
perty.^    Pothier  hr.s  laid  down  the  rule  in  the  most 


1462,)  Pothier,  (Sur  la  coutume  d'0rl6ans,  chap.  1,  ^  2,  n°'  22,  23,  et  24  ; 
ch.  3,  n°  51,)  Vattel,  (Liv.  2,  chap.  8,  i^  103  et  HO,)  Gluck,  (Commentaire, 
^  76,  Droit  Priv6,  ^  17  et  18,)  Danz,  (Manuel,  t.  1,  ^  53,  n°  1,)  Portalis, 
pere,  (Expos6  des  motifs  du  Code  Civil,  Locie,  t.  1,  p.  581  ;  V.  aussi  le 
discours  dutribun  Faure,ibid.  p.  613,)  Meier,  (P.  17,)  MM.  Mittermaier, 
{^  32,)  Eichhorn,  (^  36,)  Tiitman,  (Chap.  5,)  Muhlenbruch,  {^  72,  n°  2,) 
Brinkmann,  (p.  10  et  11,)  Story,  (^  374,  424,  et  suiv.,  et  surtout  ^  428,) 
Wheaton,  (Chap.  2,  ^  5,  t.  1,  p.  136,)  Rocca,  (P.  104,  110,  118  et  122,) 
et  Burge,  (Regie  6,  t.  1,  p.  25  ;  t.  2,  p.  14,  26,  78,  et  810.)"  Foelix, 
(Conflit  des  Lois,  Revue  Etrang.  et  Franc.  Tom.  7,  ^  27,  p.  217,  218.) 

1  The  learned  reader  may  consult  Livermore's  Dissert.  ^  9  to  ^  162, 
p.  28  to  p.  106  ;  Hertii  Opera,  Tom.  1,  De  Collis.  Leg.  ^  4,  n.  9,  p.  125, 
edit.  1737  ;  Id.  p.  177,  edit.  1716  ;  Ersk.  Inst.  B.  3,  tit.  2,  ^  40,  p.  515  ; 
Bouhier,  Cout.  de  Bourg.  ch.  23,  ^  36,  37  to  ^  63,  p.  456  to  467  ;  2  Bell, 
Comm.  ^  1266,  p.  690,  4th  edit. ;  Id.  p.  687,  688,  5th  edit.  ;  Fergusson 
on  Marr.  and  Div.  395  ;  Le  Brun,  de  la  Communaut6,  Lib.  1,  ch.  5,  p.  9, 
10  ;  D'Aguesseau,  CEuvres,  Tom.  4,  p.  660,  4to  edit. ;  Cochin,  Q^uvres, 
Tom.  I,  p.  545,  4to  edit.;  Id.  Tom.  p.  555;  Henry  on  Foreign  Law, 
p.  12,  14,  15;  Id.  App.  p.  196  ;  J.  Voet,  ad  Band.  Lib.  1,  tit.  4,  P.  2, 
§3,  5,  6,  p.  39,  40;  1  Froland,  M6m.  ch.  4,  p.  49,  ch.  7,  p.  155; 
2  Kames  on  Equity,  B.  3,  ch.  8,  ^  2.  Blr.  Burge  on  this  subject  says  ; 
"  The  summary  given  in  the  preceding  chapters  exhibits  a  great  diversity 
amongst  the  laws,  which  regulate  the  modification  and  creation  of  estate.s 
and  interests  in  real  property,  and  the  transfer  and  acquisition  of  it.  The 
law  of  the  place,  where  the  act  making  the  modification  or  alienation  is 
passed,  frequently  differs  either  from  that  of  the  place  in  which  the  party 
to  the  act  was  domiciled,  or  from  that  of  the  place  in  which  the  property 
is  situated.  It  becomes  necessary  to  inquire,  which  of  these  conflicting 
laws  is  selected,  and  what  are  the  principles  on  which  the  selection  is 
made.  There  exists  a  difference  of  opinion  amongst  jurists  as  to  the  law, 
which  ought  to  govern  the  decisions  of  some  of  the  subjects  comprehended 
under  the  titles  which  have  been  just  mentioned,  when  one  of  the  conflict- 
ing laws  aflfects  persons  as  well  as  things,  or  where  it  applies  to  the  form 
and  solemnity  of  the  acle,  by  which  the  modification  or  alienation  of  pro- 


CH.  X.] 


REAL   PROPERTY. 


711 


general  form,  declaring,  that  real  laws  have  an  exclusive 
dominion  over  all  things  submitted  to  their  authority, 


perty  is  passed,  as  well  as  to  things.  The  primary  or  principal  object  of 
the  law,  or  the  comparative  degree  in  which,  in  the  one  case,  it  afTects 
persons  or  things,  and  in  the  other,  the  form  of  the  act  or  thing,  affords 
the  ground,  on  which  some  jurists  consider  the  law  as  real  or  personal, 
and  accordingly  adopt  the  lex  loci  rei  silae,  or  the  law  of  the  domicil,  or 
that  of  the  place  in  which  the  act  is  passed.  In  the  opinion  of  other 
jurists,  if  the  law  of  the  situs  be  prohibitive,  it  must  be  preferred  to  the 
jurists,  if  the  law  of  the  situs  be  prohibitive,  it  must  be  preferred  to  the 
personal  law  of  the  domicil,  without  regard  to  the  object  of  that  law,  or 
its  immediate  effect  upon  the  status  of  the  person.  There  is,  however, 
no  difference  of  opinion  among  them  in  adopting  the  lex  loci  rei  sitas  in 
all  questions  regarding  the  modification  or  creation  of  estates  or  interests 
in  immovable  property.  This  subject  does  not  involve  any  of  the  con- 
siderations, which,  in  other  cases,  produced  that  difference  of  opinion. 
The  law  primarily  and  principally  affects  things.  It  is  wholly  independ- 
ent of  the  status  of  persons,  and  is  strictly  a  real  law.  There  is  the  con- 
currence, therefore,  not  only  of  those  jurists  who  give  the  greatest  effect 
to  the  lex  loci  rei  sitas  ;  but  even  of  those  who  are  disposed  to  give  such 
an  effect  to  laws  affecting  the  general  status  of  persons,  as  would  greatly 
control  the  operation  of  the  lex  ,^ci  rei  sitae.  Thus,  according  to  the  defi- 
nition of  Rodenburg,  '  In  solas  nudasque  res  statuti  dispositio  dirigitur, 
ut  nullum  intervenire  necesse  sit  actum  hominis  aut  aliquam  concurrere 
personas  operam.'  It  is  comprised  in  the  rule  laid  down  by  Burgundus  : 
'  Statuta  realia  sunt,  qua;  de  jure,  et  conditione,  seu  qualitate  rei  disponunt. 
Statute  reali  propositum  est  dirigere  res  ipsas,  certisque  qualitatibus  do- 
minia  afficere.'  The  doctrine  of  D'Argenlt^  is  to  the  same  effect :  '  Rea- 
lia sunt,  ut  quffi  de  modo  dividendarum  hereditatum  constituuntur,  in  capita, 
in  stirpes,  aut  talia.  Item  de  modo  rerum  donandarum,  et  quota  dona- 
tionum.'  —  '  Item  illud,  ne  in  testamento  legari  posset  viro  ab  uxore,  quod 
quidem  de  immobilibus  constituit  et  rebus  soli,  etsi  mixtam  habeat  de  per- 
sonis  considerationem,  quando  impotentia  agnatis  applicatur  rei  soli :  Nam 
si  de  mobilibus  solum  quaereretur,  posset  videri  in  totum  esse  personale.' 
The  doctrine  of  Dumoulin  is,  '  In  his,  quae  concernunt  rem,  vel  onus  rei, 
debet  inspici  consuetude  loci  ubi  sita  res  est.'  Boullenois  also  concurs  in 
treating  those  laws  as  real :  '  Qui  affecte  directement  les  biens  en  fixant 
leur  sort,  et  leur  destination  par  une  disposition  particulifre  et  indepen- 
dante  de  Tetat  personnel,  dont  I'homme  est  affecte  pour  les  actes  du  com- 
merce civil,  encore  que  quelquefois  ce  statut  ait  ^gard  a  I'etat  personnel, 
que  nous  avons  ci-devant  appell6  pur  politique  et  distinctif.'  Merlin  main- 
tains the  same  doctrine  :  '  bi  I'objet  principal,  diret,  iramediat  de  la  loi, 
'  est  de  regler  la  qualite,  la  nature  des  biens,  la  mani<ire  d'en  disposer,'  it 


712  CONFLICT    OF   LAWS.  [CH.    X. 

whether  the  persons,  owning  them,  live  within  the  ter- 
ritory, or  without  the  territory.^     And  Vattel  has  hiid 


is  a  real  law,  and  that,  '  les  effets  par  rapport  aux  personnes  ne  sont  plus, 
que  des  consequences  61oign6es  de  la  realit6.'  The  estate  or  interest, 
which  the  law  permits  or  prohibits  to  be  created  in  immovable  property, 
whether  it  be  by  substitution,  entail,  executory  devise,  condition,  or  any 
other  species  of  limitation,  may  be  considered  as  a  quality  impressed  on, 
and  inherent  in  the  property.  So  also  are  the  rules  and  limits,  under 
which  the  permission  is  given.  According  to  the  doctrine  of  those  jurists 
who  are  the  most  disposed  to  allow  personal  laws,  affecting  the  general 
status,  to  control  those  of  the  situs,  the  law,  which  confers  on  immovable 
property  its  qualities,  is  strictly  real,  and  prevails  over  the  personal  law, 
Thus,  Hertius  defines  the  law  to  be  real,  when  it  impresses  any  certain 
quality  on  immovable  property  :  '  Rebus  fertur  lex,  cum  certam  iisdem 
qualitatem  imprimit,  vel  in  alienando,  e.  g.  ut  ne  bona  avita  possint  alie- 
nari,  vel  in  acquirendo,  e.  g.  ut  domini  rei  immobilium  venditaj  non  aliter 
acquiratur,  nisi  facta  fuerit  judicialis  resignatio.'  The  same  rule  is  laid 
down  by  Mestertius  and  Burgundus,  and  is  followed  by  Boullenois. 
These  jurists,  in  treating  of  the  solemnities  vihich  the  law  requires  should 
accompany  certain  acts,  distinguish  those  which  are  '  tanquam  qualitates 
rebus  impressse.'  The  existence  and  nature  of  those  qualities  must  be 
determined  by  the  law  of  the  situs.  It  is  conceived,  therefore,  to  be  indis- 
putable, that  the  law  of  the  situs  must  be  adopted  in  all  questions  respect- 
ing the  power  of  alienating  immovable  property,  or  the  restrictions  under 
which  that  power  may  be  exercised.  Hence,  also,  it  follows,  that  the 
law  of  the  situs  must  prevail,  when  the  question  regards  the  existence  or 
validity  of  any  substitution,  the  degrees  to  which  it  may  be  limited,  the 
manner  of  computing  those  degrees,  or  the  extent  to  which  the  power  of 
alienation  may  be  restrained,  and  generally  the  condition  to  which  the 
persons  substituted  may  be  subjected.  Upon  the  same  principles  it  will 
decide,  if  the  question  regard  the  acts  which  are  essential  to  render  the 
substitution  or  entail  valid,  or  the  respective  rights  and  liabilities  of  the 
fiduciary,  fidei  commissary,  or  tenant  in  tail."  2  Burge,  Coram,  on  Col. 
and  For.  Law,  Pt.  2,  ch.  9,  p.  840  to  844.  Again,  alluding  to  the  same 
subject  in  another  place,  he  says  :  "  In  treating  of  the  alienations  of  real 
property  by  act  inter  vivos,  it  has  been  stated  as  a  conclusion,  sanctioned 
by  the  authority  of  jurists  and  of  judicial  decisions,  and  most  consistent 
with  admitted  principles,  that  the  capacity  to  make  and  to  take  under  the 
alienation  was  governed  by  the  law  of  the  actual  situs  of  the  property,  if 
it  were  immovable,  and  by  that  of  the  domicil,  if  it  were  movable.  It  is 
admitted   by   all   jurists,  that  the  transfer  of,  and   title  to  real  property, 

1  Pothier,  Coutume,  d'Orlcans,  ch.  1,  ^  2,  n.  22,  23,  24,  ch.  3,  n.  51. 


CH.  X.]  REAL    PROPERTY.  713 

it  down,  as  a  principle  of  international  law,  that  im- 
movables are  to  be  disposed  of  according  to  the  laws  of 
the  country  where  they  are  situate.^ 

§  428.  The  consent  of  the  tribunals,  acting  under  the 
common  law,  both  in  England  and  America,  is,  in  a 
practical  sense,  absolutely  uniform  on  the  same  subject. 
All  the  authorities,  in  both  countries,  so  far  as  they  go, 
recognize  the  principle  in  its  fullest  import,  that  real 
estate,  or  immovable  property,  is  exclusively  subject  to 
the  laws  of  the  government,  within  whose  territory  it 
is  situate.-      So  that  we  may  here   fully  adopt  the 


must  be  regulated  by  the  lex  loci  rei  sitas ;  that  a  law,  which  prohibits  its 
alienation,  is  a  real  law,  and  must,  in  whatever  place  the  alienation  is 
attempted,  prevent  the  acquisition  of  any  title.  It  necessarily  follows 
from  that  admission,  that  the  character  and  effect  of  the  law  must  be  the 
same,  whether  its  prohibition  has  relation  to  the  quality  of  the  property 
itself,  or  to  the  person  of  the  owner  ;  or  whether  the  prohibition  be  gene- 
ral and  absolute,  or  partial  and  qualified,  or  existing  only  sub  modo.  It  is 
a  quality  impressed  on  the  property  no  less,  when  the  property  is  prohi- 
bited to  be  alienated  under  particular  circumstances,  than  when  it  is  pro- 
hibited to  be  alienated  under  any  circumstances,  or  when  it  is  prohibited  to 
be  alienated  by  and  to  persons  standing  in  certain  relations  to  each  other, 
or  by  persons  who  are  under  a  certain  age,  or  who  are  in  any  situation, 
which  by  the  law  precludes  them  from  making  or  taking  under  the  aliena- 
tion." 4  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  12,  p.  577  ; 
Id.  p.  550  to  596. 

1  Vattel,  B.  2,  ch.  8,  ^    110;  Id.  ^   103;    Chapman   v.  Robertson, 
6  Paige,  R.  627. 

2  The  authorities  are  very  numerous,  in  which  it  has  been  decided,  or 
taken  for  granted  ;  and  among  them  in  England,   are   Sill  v.  Worsvvick, 

1  H.  Black.  665  ;    Hunter  v.   Potts,  T.  R.  41,  182;   Phillips  v.  Hunter, 

2  H.  Black.  402  ;  Selkrig  v.  Davis,  2  Rose,  Bank.  Cas.  p.  29  ;  2  Dow,  R. 
230;  Coppinu.  Coppin,  2  P.  Will.  290,  293;  Broadie  v.  Barry,  2  Ves. 
&  Beames,  R.  130;  Birthwhislle  v.  Vardill,  5  B.  &  Cres.  438  ;  2  Bell, 
Comm.  690,  4th  edit. ;  Id.  p.  687,  5th  edit.  ;  and  in  America  are,  United 
States  V.  Crosby,  7  Cranch,  115 ;  Clarke  v.  Graham,  6  Wheaton,  R.  597 ; 
Kerr  u.  Mason,  9  Wheaton,  R.  566;  Harper  v.  Hampton,  1  Harr.  and 
Johns.  R.  687  ;  Goodwin  v.  Jones,  3  Mass.  R.  414,  518  ;  Cutter  v.  Da- 
venport, 1  Pick.  R.  81,  86;  Holmes  v.  Remsen,  4  Johns.  Ch.  R.  460; 
S.  C.  20  Johns.  R.  254  ;  Hosford  v.  Nichols,  1  Paige,  R.  220  ;  Blake  v. 

60* 


7l4  CONFLICT    OF   LAWS.  [CH.  X. 

lano-uage  of  John  Voet ;  De  realibus  quidem,  cimi  plero- 
rumque  consensus  sit,  id  plimbits  docere  siipervacuum  fuerit} 
Indeed,  so  firmly  is  this  principle  established,  that  in 
cases  of  bankruptcy  the  real  estate  of  the  bankrupt, 
situate  in  foreign  countries,  is  universally  admitted  not 
to  pass  under  the  assignment,  although,  as  we  have 
seen,  there  are  great  diversities  of  opinion  as  to  mova- 
bles.^ And  Lord  Eldon  has  gone  so  far  as  to  declare, 
that  there  exists  no  legal  or  equitable  obligation  (al- 
though there  is  a  moral  obligation)  in  the  bankrupt  to 
make  a  conveyance  thereof  to  his  assignees ;  and  that 
the  creditors  are  v^ithout  redress,  unless  by  way  of 
remedy  in  rem,  where  the  real  estate  is  situate,  or  by 
withholding  a  certificate  of  discharge  until  the  bank- 
rupt executes  such  a  conveyance.^ 

§  429.  Considering,  however,  the  diversity  of  opinion 
on  this  subject  among  foreign  jurists,  it  may  be  of  some 
utility  to  examine  into  the  application  of  the  general 
rule  in  some  of  its  more  important  aspects.  We  shall, 
therefore,  consider  it,  first,  in  relation  to  the  capacity  of 
persons  to  take  or  to  transfer  real  estate ;  secondly,  in 


Williams,  6  Pick.  286  ;  Milne  v.  Moreton,  6  Binn.  R.  359.  See,  also, 
4  Covven,  R.  510,  5-27,  note  ;  Dvvarris  on  Slat.  620,  649  ;  Wiles  v.  Cow- 
per,  Wilcox's  Ohio  Rep.  279  ;  S.  C.  2  Hammond,  R.  124  ;  Henry  on 
Foreign  Law,  8,  9  ;  McCormick  v.  Sullivant,  10  Wheaton,  R.  192  ; 
Darby  v.  Mayer,  10  Wheaton,  R.  465  ;  Curtis  v.  Hutton,  14  Ves.  537, 
541;  Elliott  v.  Lord  Minlo,  6  Madd.  R.  16;  Chapman  v.  Robertson, 
6  Paige,  R.  627,  630  ;  Cockerell  v.  Dickens,  3  Moore,  Priv.  Conn.  R.  98, 
131,  132  ;  Tulloch  v.  Hariley,  1  Y.  &  Coll.  New  R.  114  ;  post,  ^  434  ; 
ante,  ^  424  ;  Augusta  Ins,  Co.  v.  Morton,  3  Louis.  Ann.  R.  418. 

1  J.  Voet,  ad  Pand.  Lib.  1,  tit.  5,  P.  2,  ^  6,  p.  40. 

2  Selkrig  v.  Davis,  2  Rose,  Bank.  Gas.  97  ;  Id.  191  ;  2  Dow,  R.  230, 
250  ;  2  Bell,  Comm.  690,  4th  edit.  ;  Id.  p.  687,  5th  edit.  ;  ante,  ^  403  to 
^  422,  ^  423  u. 

3  Selkrig  «.  Davis,  2  Rose,  Bank.  Cas.  97;  Id.  281;  S.  C.  2  Dow, 
230,  250.     But  see  Stein's  case,  1  Rose,  Bank.  Cas.  462  ;  ante,  ^  423  a. 


CH.  X.]  REAL   PROPERTY.  715 

relation  to  the  forms  and  solemnities  necessary  to  trans- 
fer it ;  thirdly,  in  relation  to  the  extent  of  interest 
to  be  taken  or  transferred  in  it;  and  fourthly,  in  rela- 
tion to  the  subject-matter  itself,  or  what  are  properly  to 
be  deemed  immovables. 

§  430.  First,  in  relation  to  the  capacity  of  persons 
to  take  or  transfer  real  estate.  It  may  be  laid  down, 
as  a  general  principle  of  the  common  law,  that  a  party 
must  have  a  capacity  to  take  according  to  the  law  of 
the  situs,  otherwise  he  will  be  excluded  from  all  owner- 
ship. Thus,  if  the  laws  of  a  country  exclude  aliens 
from  holding  lands,  either  by  succession  or  by  purchase, 
or  by  devise,  such  a  title  becomes  wholly  inoperative  as 
to  them,  whatever  may  be  the  law  of  the  place  of  their 
domicil.^  On  the  other  hand,  if,  by  the  local  law,  aliens 
may  take  and  hold  lands,  it  is  wholly  immaterial,  what 
may  be  the  law  of  their  own  domicil,  either  of  origin, 
or  of  choice. 

§  431.  So,  if  a  person  is  incapable  from  any  other 
circumstance,  of  transferring  his  immovable  property  by 
the  law  of  the  situs,  his  transfer  will  be  held  invalid, 
although,  by  the  law  of  his  domicil,  no  such  personal 
incapacity  exists.  On  the  other  hand,  if  he  has  capacity 
to  transfer  by  the  law  of  the  situs,  he  may  make  a  valid 
title,  notwithstanding  an  incapacity  may  attach  to  him 
by  the  law  of  his  domicil.  This  is  the  silent,  but  irre- 
sistible result  of  the  principle  adopted  by  the  common 
law,  which  has  no  admitted  exception.  We  may  illus- 
trate the  principle  by  an  application  to  cases  of  common 
occurrence  under  the  dominion  of  the  common  law.  By 
that  law  a  person  is  deemed  a  minor,  and  is  incapable 


1  See  Buchanan  v.  Deshon,  1  Gill,  R.  280  ;  Sewall  v.  Lee,  9  Mass.  R. 
263. 


716  CONFLICT    OF    LAWS.  [CH.    X. 

of  conveying  real  estate,  until  be  has  arrived  at  twenty- 
one  years  of  age.  But  by  the  law  of  some  foreign 
countries  minority  continues  until  twenty-five  or  even 
until  tbirty  years  of  age.  .  Let  us,  tben,  suppose  a 
foreigner,  owning  lands  in  England  or  America,  (wbere 
tbe  common  law  prevails,)  who  is  by  the  law  of  bis 
domicil  in  bis  minority,  but  who  is  over  twenty-one 
years  of  age.  It  is  clear,  that  he  may  convey  bis  real 
estate  in  England  or  America,  notwithstanding  such 
domestic  incapacity ;  for  he  is  of  tbe  age  required  by 
tbe  local  law.^  On  the  other  hand,  let  us  suppose  a 
married  woman,  who  is  domiciled  in  a  foreign  country, 
and  by  tbe  law  of  that  country  is  incapable  of  alienating 
her  real  estate  v^'itbout  tbe  consent  of  her  husband, 
owning  real  estate  in  England  or  in  America,  where 
she  is  incapable  of  alienating  it  without  such  consent ; 
she  cannot  alienate  it  without  the  consent  of  her  hus- 
band ;  and  her  separate  act  will  be  held  ijjso  facto  void 
by  the  law  of  tbe  situs. 

§  432.  But,  however,  clear  this  may  seem,  according 
to  tbe  principles  of  the  common  law  on  this  subject,  a 
very  different  doctrine  is,  as  we  liaA^e  already  seen, 
maintained  by  many  foreign  jurists  on  this  very  point.^ 
They  contend,  that  the  capacity  or  incapacity  of  persons 
to  transfer  property,  or  to  do  any  other  act,  depends 
altogether  upon  tbe  law  of  tbe  place  of  their  domicil. 
If  they  have  a  capacity  or  incapacity  there,  it  governs 
all  their  property  elsewhere,  whether  movable  or  im- 
movable. Thus,  Boullenois  maintains,  that,  if  a  man 
has  immovable  property  in  a  place  wbere  majority  is 


'  See  Saul  v.  His  Creditors,  17  Martin,  R.  569,  597. 
2  Ante,  ^  51,  52  to  61,  65  ;    1  Burge,  Comm.  on  Col.  and  For.  Law, 
Pt.  1,  ch.  1,  p.  21,  22,  23. 


CH.  X.]  REAL   PROPERTY. 


717 


attained  at  twenty-five,  and  by  the  law  of  his  domicil 
he  is  of  age  at  twenty,  he  may  at  twenty  sell  or  alien- 
ate such  immovable  property.  And,  on  the  other  hand, 
if  by  the  law  of  the  situs  of  the  immovable  property,  he 
is  of  age  at  twenty,  but  by  the  law  of  his  domicil,  not 
until  twenty-five,  he  cannot  sell  or  alienate  such  pro- 
perty until  the  age  of  twenty-five.'  Rodenburg  adopts 
the  same  doctrine,  and  maintains  it  with  abundance  of 
zeal.^  After  having  remarked,  that  among  personal 
statutes  are  to  be  reckoned  all  laws,  which  affect  the 
state  or  condition  of  the  person,  such  as  laws  respecting 
majority,  the  paternal  power  over  children,  the  marital 
power  over  the  wife,  and  cases  of  prodigals,  he  adds ; 
De  qidhiis  et  simiUbus  id  Juris  est,  ut  quocumqiie  transtule- 
rit  'persona  statute  loci  domicilii  ita  qfecta,  haUlitatem  aut 


1  Ante,  ^  52,  71.  —  There  is  a  curious  distinction  maintained  by  many 
jurists  on  this  subject,  wliich  deserves  notice.  —  They  say,  that,  if  the 
local  law  fixes  the  age  of  majority  at  a  particular  period,  and  declares, 
that,  until  the  party  has  arrived  at  that  period,  he  shall  not  alienate  im- 
movable property, —  in  that  case  the  local  lawr  governs;  for  it  does  not 
turn  upon  the  mere  fact  of  being  a  major  or  not.  But  if  the  local  law 
only  says,  that  no  person  who  is  not  a  major,  shall  alienate,  then,  if  the 
party  is  a  major  by  the  law  of  his  domicil,  though  not  by  that  of  the  rei 
sitae,  he  may  alienate  the  property,  because  the  only  point  is  majority  or 
not,  and  that  must  be  ascertained  by  llie  lex  domicilii;  for  the  state  or 
capacity  of  a  person  by  the  law  of  his  domicil  extends  everywhere.  Boul- 
lenois  dwells  much  on  this  distinction,  and  it  has  received  the  support  of 
Merlin.  1  Boullenois,  Observ.  4,  p.  57  ;  Id.  Observ.  5,  p.  102;  Id.  Ob- 
serv.  12,  p,  175;  Id.  Observ.  13,  p.  183;  Id.  Observ.  23,  p.  499  ;  Id. 
Observ.  28,  p.  700,  705,  720  ;  Boullenois,  Quest.  Mixt.  p.  19  ;  2  Merlin, 
Repertoire,  Testament,  ^  1,  6,  art.  3,  p.  318,  art.  2,  p.  317,  318;  Id.  art. 
3  ;  2  Froland,  Mem.  des  Slat.  p.  824,  825  ;  Livermore,  Dis.  ^  44,  p.  48; 
Id.  ^  47,  48,  p.  50  ;  Id.  ^  59  to  62,  p.  58,  59,  CO. 

2  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  1  ;  2  Boullenois,  Appx.  p.  10; 
1  Boullenois,  77,  79,  154,  155,  194,  295  ;  1  Hertii  Opera,  De  Collis.  Leg. 
§  4,  n.  23,  p.  133,  edit.  1737 ;  Id.  p.  175,  edit.  1716  ;  Livermore,  Dissert. 
\  31,  p.  40  ;  Id.  ^  44,  p.  48  ;  Id.  ^  45,  46,  p.  49  ;  Bouhier,  Gout,  de  Bourg. 
ch.  24,  ^  91  to  ^  108,  p.  476,  477,  478 ;  ante,  51,  51  a,  ^  52,  ^  52  a,  ^  53. 


718  CONFLICT    OF   LAWS.  [CH.  X. 

inhahilitatem  adenvptam  domi,  circumferat  ubique,  tit  in  uni- 
versa  territoria  suimi  statukim  exerceat  effedum}  Yet  Ro- 
denburg  himself  deserts  this  doctrine,  in  regard  to  the 
capacity  and  incapacity  to  make  a  will  or  testament, 
which  he  holds  must  be  according  to  the  Lex  rei  sitw? 


1  Rodenburg,  De  Divers.  Stat.  tit.  2,  ch.  1  ;  2  Boullenois,  Appx.  p.  11 ; 
ante,  ^51. 

2  Rodenburg,  De  Divers.  Statut.  tit.  2,  ch.  5,  n.  7  ;  2  Boullenois,  Appx. 
p.  38,  39.  His  language  is  :  Sed,  ut  id,  quod  instat,  aganaus  :  quid  si 
nostras  testetur  anno  setatis  decimo  quarto,  sortieturne  affectum  dispositio 
in  rebus,  quae  alterius  regionis  solo  inhaereant,  in  qua  major  ad  testandum 
desideratur  a;tas  ?  Sit  dubitanda  ratio,  quod  de  personarum  a;tate  ac 
capacitate  lata  lex  in  personam  concepta  esse  videatur,  adeoque  ad  quse- 
cunque  producenda  territoria.  Verum  contra  reale  Statutum  esse  inde 
dixeris,  quod  in  statutum  ac  condilionem  persons  non  sit  scriptum,  sed 
expressim  directum  in  rerum  alienationes  aut  alterationes,  et  quidem  per 
solam  testamenti  speciem,  adeoque  circumscriptive  ad  istum  alienationis 
actum  ;  cujusmodi  Statuta  realia  esse  traditum  saepius :  et  vel  inde  in  pro- 
posito  conspicere  est,  quod  immoto  personas  statu,  quae  nulla  ex  parte 
tutelcB  subducilur,  auutoritate  tuloris  non  spectaute  minoris  testationes, 
tribuatur  noslratibus  ha3c  testamenti  factio,  adeoque  cum  status  non  turbe- 
tur,  lex  personalis  dici  nequeat.  See  also  4  Burge,  Comm.  on  Col.  and 
For.  Law,  Pt.  2,  ch.  12,  p.  578,  579,  On  this  subject,  Mr.  Burge  has 
well  remarked  :  "  The  difficulty  of  adopting  such  a  distinction  arises 
from  the  consequences  to  which  it  leads,  for  it  seems  to  import,  that  if  the 
law  of  the  situs  prohibits  the  alienation  by  a  minor,  the  question,  whether 
he  is  a  minor,  or  in  other  words,  whether  he  is  competent  to  make  a  tes- 
tament, is  to  be  determined,  not  by  that  law,  but  by  the  law  of  his  domi- 
cil.  But  if  the  law  had  prohibited  an  alienation  by  a  person  who  had  not 
attained  the  age  of  twenty-one  or  twenty-five  years,  or  any  other  age, 
which  was  prescribed  by  the  law  as  the  age  of  majority,  the  law  of  this 
situs  would  prevail,  and  the  competence  of  the  person  would  depend  on 
his  having  attained  that  age.  But  without  further  pursuing  the  inquiry, 
which  has  already  been  made  in  the  former  volume,  it  may  be  considered, 
that  the  opinions  of  Dumoulin,  Burgundus,  Peckius,  John  and  Paul  Voet, 
and  the  decision  reported  by  Stockrnans,  afford  authority  sufficient  to  jus- 
tify the  conclusion,  that  the  capacity  to  alienate  by  testament  is  that  which 
is  esiablished  by  the  law  of  the  country  in  which  the  immovable  property 
is  situated,  and  by  that  of  the  domicil,  when  the  testamentary  disposition 
regards  movable  property."  Ibid.  See  also  1  Burge,  Comm.  on  Col.  and 
For.  Law,  Pt.  1,  ch.  1,  p.  21,  22,  23  ;  post,  ^  433  a. 


CH.  X.] 


REAL    PROPERTY.  719 


There  are  many  others,  who  adhere  to  the  same  opinion.' 
The  groundwork  of  their  argument  is,  that  the  capacity 


1  Ante,  ^  51,  52,  53,  54,  60;  1  Fioland,  M6m.  dcs  Statuts,  65,  66; 
Liverm.  Diss.  47,  p.  54,  §  55,  '5>  56 ;  2  Froland,  M6m.  des  Siat.  p.  1576 
top.  1594;  Merlin  R^'pertoire,  Testament,  ^  1,  5,  art.  2,  p.  517,518; 
1  Boullenois,  Observ.  6,  p.  127  to  p.  140  ;  1  Boullenois,  Observ.  28, 
p.  705  to  p.  731. — This  is  manifestly  the  opinion  of  Mr.  Livermore, 
(Diss.  p.  40  to  p.  42 ;  Id.  p.  48  to  p.  57.)  So  of  Merlin,  (Repertoire, 
Majorite,  ^5;  Autorisation  Maritale,  <^  10,  art  2;  Id.  Puissance  Parier- 
nelle,^  7,  p.  142  to  146)  ;  of  Froland,  (1  Froland,  Mem.  des  Stat.  p.  156, 
171  ;  2  Froland,  Mem.  des  Stat.  p.  1595);  of  Bouhier,  (Bouhier,  Cout. 
de  Bourg.  ch.  23,  ^  90  to  96,  p.  461  ;  Id.  ch.  24,  ^  91,  &c.  p.  476  ;  Id. 
1  Boullenois,  Observ.  28,  p.  724);  of  Pothier,  (Pothier,  Cout.  d'Orl^ans, 
ch.  1,  ^  4,  n.  7,  p.  2);  of  Huberus,  (Huberus,  Lib.  1,  tit.  3,  §12;  ante, 
§  60);  andof  Herlius,  (Heriii  Opera,  Tom.  l,De  Collis.  §  4,  n.  8, p.  123, 
124,  edit.  1737;  Id.  p.  175,  edit.  1716.)  Merlin  in  another  plaee  admits, 
that  a  law,  which  prohibits  a  prodigal  from  making  a  testament,  is  per- 
sonal ;  but  at  the  same  time  it  will  not  prevent  the  prodigal  from  making 
a  valid  will  of  immovable  property  in  a  foreign  country,  which  allows  it 
(as  in  Bourbourg) ;  for  which  he  gives  two  reasons;  first,  that  a  law  is 
real,  which  permits  one  act  to  be  done  by  a  person,  vvho  is  otherwise  inca- 
pable ;  and  secondly,  because  a  real  law  always  prevails  when  it  comes  in 
conflict  with  a  personal  law.  He  applies  the  same  rule  to  an  unemanci- 
pated  son,  who  cannot  by  the  law  of  his  domicil  make  a  testament,  but 
yet  may  alienate  any  of  his  property  acquired  in  Hainault  ;  for  its  laws 
form  an  exception  to  the  general  incapacity  of  the  son,  and  therefore  they 
are  real.  Merlin,  Repertoire,  Testament,  §  1,  n.  5,  art.  1,  p.  310.  This 
opinion  seems  to  coincide  with  that  of  Hertius,  (1  Hertii  Opera,  De  Col- 
lis. Leg.  4,  n.22,  p.  133,  edit.  1737;  Id.  p.  188,  edit.  1716.)  It  seems 
also  supported  by  Rodenburg,  (Rodenburg,  De  Div.  Stat.  P.  1,  tit.  1, 
ch.  2;  2  Boullenois,  Appx.  p.  4,  5,  6,  cited  by  Merlin,  ubi  supra.)  —  But 
Merlin  says,  that,  if  by  the  laws  of  the  country  of  his  domicil  an  uneraan- 
cipated  son  cannot  make  a  testament,  and  by  the  laws  of  another  country 
he  has  a  general  capacity  ;  in  such  a  case  such  laws  are  personal  and  in 
conflict,  and  therefore  the  law  of  the  domicil  is  to  govern.  Merlin,  Id. 
p.  311.  See  also  1  Boullenois,  Observ.  5,  p.  77,  78.  Boullenois  lays 
down  some  rules  upon  this  subject,  which  seem  also  to  have  received  the 
approbation  of  Bouhier.  (1.)  When  the  personal  statute  of  the  domicil 
is  in  conflict  with  the  personal  statute  of  another  place,  the  law  of  the 
domicil  is  to  prevail.  (2.)  When  the  personal  statute  of  the  domicil  is  in 
conflict  with  the  real  statute  of  the  same  or  another  place,  it  yields  to  the 
real  statute.  (3.)  When  the  real  statute  of  the  domicil  is  in  conflict  with 
the  real  statute  of  the  situs  of  the  property,  each  one  has  its  own  authority 


720  CONFLICT    OF    LAWS.  [CH.  X. 

and  incapacity  of  the  person  must  be  uniformly  the 
same  everywhere;  that  the  law  of  the  domicil  ought 
to  regulate  it ;  and  that  it  would  be  utterly  incongru- 
ous to  make  a  minor  in  one  place  a  major  in  another, 
thus  investing  him  wath  opposite  personal  qualities.^ 

§  433.  This  notion  is  combated  with  great  vigor  and 
ability  by  other  foreign  jurists,  whose  opinions  have 
been  already  alluded  to.^  Burgundus  admits,  that  per- 
sonal laws,  as  to  capacity  or  incapacity,  govern  all  per- 
sonal acts,  such  as  personal  contracts.  Nam^  {id  Imola 
et  Castrensis  scripsere.)  qui  inhahilis  est  in  wio  loco,  etiam 
in  alio  censehir  inhahilis  ;  quod  idiqiie  accijnendum  est  de 
habilitate,  vel  inhahilitate,  quce  a  statuto  personali  procedit, 
et  ad  actus  personates  dirigitur?  But  in  regard  to  im- 
movable property,  he  says,  that  it  is  sufficient,  that  a 
person  be  of  the  age  required  by  the  law  of  the  situs, 
to  authorize  him  to  make  a  valid  transfer,  although  he 
may  be  incapable  by  the  law  of  his  domicil.  His  lan- 
guage is ;  Qidppe  [sicut  Bartolus  existimat)  hahilitas  per- 
sonam ad  actus  personates  non  trahit  effectwn  ad  res  sit  as 


in  its  own  territory.  1  BouUenois,  Pr.  Gen.  29,  30,  31  ;  Id.  Observ.  5, 
p.  181,  182  ;  Bouhier,  Cout.  de  Bourg.  ch.  23,  ^  90,  96,  p.  461  ;  Id.  ch. 
24,  ^  91,  &c.  p.  476  ;  Livermore,  Diss.  §  59,  p.  58,  59.  See  the  opinion 
of  Grotius  cited,  post,  ^  479. 

1  Mr.  Henry  says,  that  the  personal  statutes  of  one  place  may  act  indi- 
recily  and  by  comity  on  immovable  property  situate  in  another;  as  a  de- 
cree oflunacy  may  by  its  effects  deprive  a  parly  of  a  power  to  alienate  his 
foreifrn  property  ;  and  so  of  the  disability  created  by  bankruptcy.  Henry 
on  Foreign  Law,  15.  This  seems  inadmissible  as  a  doctrine  of  the  com- 
mon law. 

2  Ante,  52,  53,  54,  54,  a. 

3  Burgundus,  Tract.  1,  n.  7,  8,  p.  19,  See  also  Rodenburg,  De  Div. 
Stat.  tit.  2,  ch.  1  ;  2  BouUenois,  Appx.  p.  11,  12  ;  1  Boullenois,  Observ. 
6,  p.  127  to  131  ;  Id.  p.  199,  201,  202  ;  Liverm.  Diss.  ^  47,  48,  49,  p.  50, 
51,  52  ;  Bouhier,  Cout.  de  Bourg.  ch.  24,  ^  91,  94  to  107,  p.  476,  477, 
478. 


CH.  X.]  REAL   PROPERTY.  721 

extra  territorium.  Proinde,  d i)er agendum  est  aliqnid  circa 
rem,  jam  non  respiciemus  personam  statum,  quern  foris  as- 
sumpsit ;  scd  an  mancipens  in  ed  sit  conditione  qiiam  low- 
rum  situs  ipse  requirit}  And  again  ;  M  quidem  eodem 
modo,  quoties  de  jure,  vel  servitute,  aut  lihertate  personce 
quwritur,  item  de  facultate  ad  res  personates  constituta,  res- 
pondendum erit  secundum  conditionem  personce,  quam  induit 
in  loco  domicilii.  Et  contra,  ergo  si  de  jure  ac  facultate, 
quce  a  re  ipsa  proficiscitur,  item  de  ejus  servitute,  atque  lib- 
ertate,  plane  ad  leges  situs  spectare  oportet.  Cum  enim 
unicidque  provincice  suce  'proprioe  sint  leges,  possessionihis 
injunctce  atque  indictee,  sane  incapacitas  foris  adepta  in  con- 
siderationem  venire  non  potest ;  sed  omnis,  sive  qualitas,  sive 
personce  hahilitas,  quoad  eadem  bona  pertinct,  a  loco  situs 
proficiscitur?'  Bartolus  affirms  the  same  doctrine.  Cum 
est,  quod  de  aliquo  jure  descendente  ex  re  ipsa  servari  con- 
suctudo  vel  statutum  loci,  idji  est  res?  Boullenois,  after 
some  fluctuations  of  opinion,  comes  to  tlie  result,  that 
the  capacity  to  make  a  testament,  so  far  as  it  regards 
the  person,  is  personal ;  but  so  far  as  it  regards  immo- 
vables, is  real,  and  governed  by  the  law  of  the  situs  of 
the  property.^ 

§  433  a.  Stockmans,  Dumoulin,  Bouhier,  Paul  Voet, 
and  John  Voet  maintain  the  same  opinion.^     Dumou- 


1  Burgundus,  Tract  1,  n.  8,  p.  19  ;  ante,  ^  54  ;  Liverm.  Diss.  \  47,  48, 
p.  51,  52. 

2  Burgundus,  Tract  1,  n.  8,  p.  19,  20.  See  also  1  Boullenois,  Obser. 
6,  p.  129,  130  ;  Id.  Obser.  9,  p.  150  ;  ante,  ^  372. 

3  Bartol.  ad  Cod.  Lib.  1,  tit.  1,  n.  27;  Bartol.  Oper.  Tom.  7,  p.  5. 

4  1  Boullenois,  Obser.  28,  p.  718,  719,  720.  See  Td.  Obser.  5,  p.  81, 
82,  83,  84,  101,  102.  See  also  Merlin,  R6pert.  Testament,  %  1,  n.  8, 
art.  1,  p.  310  ;  Cochin,  CEuvres,  Tom.  4,  p.  555,  4to  edit. 

5  Liverm.  Diss.  ^  49  to  52,  p.  52,  53,  54;  1  Froland,  Mem.  des  Stat, 
p.  65,  66  ;  2  Froland,  des  Stat.  p.  819  to  823  ;  4  Burge,  Comm.  on  Col. 

•and  For.  Law,  Pt.  2,  ch.  12,  p.  579  ;  ante,  §  432,  note. 
CONFL.  61 


722  CONFLICT    OF   LAWS.  [CH.  X. 

lin  says ;  Aut  stahitum  agit  in  rem,  et  quaciimqiie  verhoriim 
formula  idatiir,  semper  inspicitiir  locus  uU  res  est}  Si 
staiutum  dicat,  quod  minor  25  annis  nan  possit  testari  de 
immohilibus,  tunc  enim  non  respicit  personam,  nee  agit  in 
personam  princifaliter,  nee  in  solemnitatem  actus,  sed  agit 
in  certas  res,  ad  finem  conservandi  patrimonii,  et  sic  est 
reale.  Quia  idem  est,  ac  si  dictum  esset,  immohilia  non  pos- 
sint  alienari  in  testamento  per  minores.  Unde  statiitum 
loci  inspicietur,  sive  persona  suhdita  sit,  sive  non^  Stock- 
mans  says ;  Jampridem  Pragmaticonmi  consensa  et  usu 
fori  invaluit,  ut  ubicumque  agitur  de  renmi  soli  alienatione, 
mancipatione,  investura,  siiccessione,  aliisque  translationis  et 
acquisitionis  modis,  insp)iciuntiir  leges  loci,  uU  res  sitw  sunt, 
sive  cpiccstio  sit  de  cetate,  vcl  alia  qualitate,  habilitate,  vel  in- 
habilitate  personce  sive  agatur  de  statido  verbis  in  rem,  sive 
in  personam,  directs  concepto ;  cum  effectiis  ipse,  potius 
quam  verba,  attendendus  sit,  qui  prorsus  realis  est,  quoties 
de  rebus  soli  transferendis  et  mancip)andis  quceritur ;  atque 
proinde  ah  hoc  effectu  statutum  omne,  quod  hue  respticit,  vel 
eo  rem  deducit,  pro  reali  habendum  jiidicandiimque  sit? 
Paul  Voet  adds,  that  personal  laws  do  not  regularly 
extend,  so  as  to  afFect  immovable  property  in  a  foreign 
country,  either  directly  or  consequentially.'*    John  Voet 


1  Molin.  Comm.  ad  Cod.  Lib.  1,  tit.  1,  1.  1,  Conclusiones  de  Statut. 
Tom.  3,  p.  556  ;  Liverm.  Diss.  ^  81,  p.  69. 

2  Molin.  Comm.  ad  Cod.  Lib.  1,  tit.  1,  1.  1,  Conclus.  de  Statut.  Tom. 
3,  p.  556  ;  post,  ^  475,  Bouhier,  Cout.  de  Bourg.  ch.  24,  ^  91  to  ^  102, 
p.  476,  477,  478 ;  1  Froland,  M6m.  des  Stat.  p.  65. 

3  Slockmans,  Decis.  125,  n.  9,  p.  263  ;  ante,  §  54  ;  Liverm.  Diss.  ^  50, 
p.  52,  53  ;  2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  9,  p.  863, 
864. 

4  P.  Voet,  de  Stat.  §  4,  ch.  2.  n.  7,  p.  124,  edit.  1715  ;  Id.  p.  138,  edit. 
1661 ;  ante,  ^  54,  note.  —  Paul  Voet  admits,  that  personal  laws  accom- 
pany the  person  everywhere,  as  to  property,  within  the  territory  of  the 
government  of  which  he  is  a  subject ;  but  not  as  to  any  property  else-^ 


CH.  X.]  REAL   PROPERTY.  723 

has  gone  into  an  elaborate  consideration  of  the  subject 
and  positively  denies,  that  personal  laws  can  operate 
out  of  the  territory.  Nulla  tamen  ratione  (says  he)  suffi- 
cienie,  cum  hcec  nitantur,  nco  a  Icgihus  Romanis  huic  sen- 
teiiiice  patrocimum  aceedere  possil ;  verius  est  iKrsonalia^ 
non  magis  quam  realia,  territonum  statuentis  p)osse  exceclere, 
sive  diredo,  sive  per  consequentiam.  And  he  proceeds  to 
put  very  pointed  inquiries,  whether  any  foreign  coun- 
try will  permit  its  own  territorial  laws  to  be  overthrown 
by  the  laws  of  another  country,  on  the  subject  of  prodi- 
gals, infamous  persons,  minors,  illegitimacy,  or  legiti- 
macy and  heirship.^ 

§  433  h.  Christin^eus  adopts  the  same  opinion.  Quod- 
cum  de  rebus  soli,  hoc  est  immoUUhus,  agitur,  ct  divcrsa  di- 
versarum  possessionum  hca,  et  situs  propommtur,  in  acqui- 
rendis,  transferendis,  et  asserendis,  dominiis,  et  in  controver- 
sia  quo  jure  regimtur,  ccrtissimam  in  iisu  olservationcm  esse 
noti  satis  Juris,  est,  id  Jus  de  plurihus  spectari,  quod  loci  est 
vel  situs,  et  siias  quoqiie  leges,  statuta  et  consuetudines  ser- 
vandosfore;  sic  quod  de  talihus  mdla  cujusquam  potestas 


where.  Statutum  personals  ubique  locorum  personam  comitatur,  in  or- 
dine  ad  bona  infra  territorium  statuentis,  ubi  persona  afFecta  domicilium 
habet.  Non  tamen  statutum  personate  sese  extendit  ad  bona  immobilia 
alibi  sita.  P.  Voet,  De  Stat.  (^  4.  ch.  2,  n.  6,  p.  123,  edit.  1715  ;  Id. 
p.  138,  edit.  1661.  In  another  place  he  says  :  Immobilia  statutis  loci  re- 
guntur,  ubi  sita.  P.  Voet,  De  Statut.  ^  9,  ch.  1,  n.  4,  p.  252,  253,  edit. 
1715 ;  Id.  p.  306,  307,  edit.  1661  ;  ante,  ^  54,  note  ;  post,  i^  i75,  483  b  ; 
ante,  ^  52,  52  a  ;  S.  P.  J.  Voet,  ad  Pand.  Lib.  1,  tit.  4,  ^  2,  9,  p.  43. 

1  J.  Voet,  ad  Pand.  Lib.  1,  tit.  4,  ^  7,  Pars  2,  De  Stat.  p.  40,  cited  at 
large,  ante,  ^  54  a.  — There  are  some  jurists  who  adopt  an  intermediate 
opinion,  holding,  that,  in  order  to  transfer  real  property,  the  party  must 
have  capacity  according  to  the  lex  domicilii  and  the  lex  rei  sita;.  Thus, 
if  in  the  country  rei  sita3  the  age  to  convey  is  twenty-one  years,  and  in  the 
country  of  the  domicil  the  age  is  twenty-five  years,  a  party  cannot  convey, 
although  he  is  twenty-one  years  of  age,  nor  unless  he  is  twenty-five. 
Ante,  §  432,  note,  ^  388. 


724  CONFLICT    OF   LAWS.  [CH.  X. 

sit  pneter  territorii  legem}  Peckius  is  equally  direct. 
Etmim  natiira  statidi  est,  lit  non  extendcdiir  ad  bona  in  alio 
territorio  sita,  uhi  contraria  stat  juris  disposition  Bona 
autem  dicuntur  esse  in  ejus  jurisdictione,  in  cijiis  tenitorio 
sunt?  And  again ;  Quod  sive  statidimi  locjiiatur  in  rem 
sive  in  personam,  Juibeat  locum  in  bonis  positis  in  territorium 
statiientium,  et  non  in  aliis^ 

§  434.  The  opinion  of  these  latter  jurists  is  in  coin- 
cidence with  that  of  the  common  law,  as  already  stated ; 
and  it  has  been  fully  recognized  in  England,  in  a  recent 
case  of  which  we  have  had  occasion  to  take  notice  in 
another  place.^  Upon  that  occasion  Lord  Chief  Justice 
Abbott  said  ;  "  The  rule  as  to  the  law  of  domicil  has 
never  been  extended  to  real  property  -,  nor  have  I 
found,  in  the  decisions  of  Westminster  Hall,  any  doc- 
trine giving  a  countenance  to  the  idea,  that  it  ought  to 
be  so  extended.  There  being  no  authority  for  saying, 
that  the  right  of  inheritance  follows  the  law  of  the  do- 
micil of  the  parties,  I  think  it  must  follow  that  of  the 
country  where  the  land  lies."  The  same  doctrine  was 
concurred  in  by  the  other  Judges.^ 

§  435.  Secondly,  in  relation  to  the  forms  and  solem- 
nities of  passing  the  title  to  real  estate.^  We  have 
already  had  occasion  to  examine  the  point;  whether 


1  Christin.  Decis.  3,  Vol.  2,  p.  4;    1  Boullenois,  Observ.  6.  p.  127  to 
p.  140. 

2  Peck.  Oper.  De  Testam.  Conjug.  Lib.  4,  ch.  8,  n.  5,  p.  619,  edit. 
1666. 

3  Idem. 

4  Id.  n.  6,  7,  p.  620. 

5  Ante,  ^  87. 

6  Doedem.  Birthwhistle  v.  Vardill,  5  Barn.  &  Cres.  438.    But  see  S.  C. 
2  Clark  &  Finnell.  571  ;  9  Bligh,  R.  32  to  88. 

'  See  2  Burge,  Comm.  on  Col.  and  For.   Law,  Pt.  2,  ch.  9,  p.  840  to 
p.  870  ;  Id.  Vol.  1,  Ft.  1,  ch.  1,  p.  21,  22,  23. 


CH.  X.] 


REAL   PROPERTY.  725 


executory  contracts  respecting  real  estate  must  not  be 
in  the  form  prescribed  by  the  local  law,  in  order  to 
have  validity ;  as  for  instance,  a  contract  for  the  sale 
of  land  in  England  to  be  in  writing  according  to  the 
Statute  of  Frauds.^  The  result  of  that  examination 
was,  that  in  countries  acting  under  the  common  law, 
the  affirmative  is  admitted ;  although  foreign  jurists 
are  divided  on  the  point.^     It  would  seem  clear,  also, 


1  Ante,  ^  363  to  373.  See  also  2  Burge,  Coram,  on  Col.  and  For.  Law, 
Pt.  2,  ch.  9,  p.  867,  8G8,  869. 

2  Ante,  ^  337,  363  to  373.  —  Mr.  Foelix,  speaking  on  this  subject, 
says  :  "  Un  principe  aujourd'hui  g6neralement  adopt6  par  I'usage  des 
nations,  c'est  que  '  la  forme  des  actes  est  r6gl6e  par  les  lois  du  lieu  dans 
lequel  ils  sont  faits  ou  passes.'  C'est-a-dire,  que,  pour  la  validile  de  tout 
acte,  il  suffit  d'observer  les  formalit^s  prescrites  par  la  loi  du  lieu  ou  cet 
acte  a  6te  dress6  ou  r<^dig6  ;  I'acte  ainsi  pass6  exerce  ses  effets  sur  les 
biens  meubles  et  immeubles  situ^s  dans  un  autre  territoire,  dont  les  lois 
6tablissent  des  formalites  diffferent6s  et  plus  6tendues  (Locus  regit  actum.) 
En  d'autres  termes,  les  lois,  qui  r6glent  la  forme  des  actes,  6tendent  leur 
autorite  tant  sur  les  nationaux  que  sur  les  Strangers  qui,  coiitractent  ou 
disposent  dans  le  pays,et  elles  participent  ainsi  de  la  nature  des  lois  r^el- 
les."  Foelix,  Conflit  des  Lois,  Revue  Etrang.  et  Fran^.,  Tom.  7,  1840, 
§  40,  p.  346.  347.  And  again  ;  "  Parmi  les  (!;crivains  modernes,  nous  en 
comptons  trois,  qui  n'adoptent  point  la  maxime,  que  la  forme  des  actes  est 
regime  par  la  loi  du  lieu  dans  lequel  ils  sont  faits  ou  passes.  Suivant  M. 
Eichhorn,  les  actes  d'une  personne,  qui  aflectent  sa  fortune,  doivent,  en 
r^gle  g6n6rale,  6tre  conform6s  aux  lois  de  soq  domicile,  quant  a  la  forme 
et  quant  a  leur  substance,  lorsqu'on  se  propose  de  les  mettre  a  execution 
dans  ce  domicile  :  la  raison  en  est,  dit  I'auteur,  dans  le  principe  de  la  sou- 
verainele  des  nations  ct  dans  la  loi  21  fF.  de  obi.  et  act.  (Contraxisse  unus- 
quisque  in  eo  loco  intelligitur,  in  quo  ut  solveret,  se  obligavit.)  Cette 
regie,  continue  I'auteur,  admet  des  exceptions  ;  1"  lorsque  I'acte  a  6ie  fait 
sans  fraude  dans  un  pays  Stranger,  ou  il  y  a  eu  impossibilit6  de  remplir  les 
formes  prescrites  au  lieu  du  domicile  de  la  personne,  qui  contracte  ou  qui 
dispose  ;  2°  lorsque  I'acte  a  6t6  fait  dans  un  pays  Stranger  dont  les  lois  ne 
prot6gent  les  acles  et  contrats  qu'autant  qu'on  y  a  suivi  une  certaine 
forme;  3"  lorsque  le  statut  r6el  -exige,  pour  I'acqnisition  ou  I'alidnation 
d'un  immeuble,  un  acte  qui  precede,  la  forme  et  le  contenu  de  cet  acte 
doivent  se  regler  par  cc  statut  r6el.  —  Par  application  de  la  r6gle  profes6e 
par  M.  Eichhorn,  cet  auteur  soutient  que  le  testament  fait  en  pays  6tran- 

61* 


726  CONFLICT    OF   LAWS.  [CH.  X. 

according  to  the  common  law,  that  no  conveyance  or 
transfer  of  land  can  be  made,  either  testamentary  or 


ger,  d'apr^s  les  formes  qui  y  sont  etablies,  n'aura  ses  effets,  dans  la  patrie 
du  testateur,  quant  a  la  forme,  qu'autant  que  les  lois  de  cette  patrie  recon- 
naissent  la  meme  forme,  h  moins  que  le  testateur  ne  soit  egalement  deced6 
dans  le  pays  de  la  confection  du  testament:  dans  ce  dernier  cas  seule- 
ment,  le  dit  testament  sortirait  ses  effects  dans  sa  patrie.  La  proposition 
enseign^e  par  Eichhorn  pent  etre  vraie  en  droit  6troit ;  mais  elle  est 
contraire  a  I'usage  des  nations,  attest^  par  le  sentiment  general  des  au- 
teurs  cit6s  plus  haut :  on  ne  doit  done  pas  s'arreter  a  I'opinion  isol6e  de 
M.  Eichhorn.  D'ailleurs,  les  exceptions  admises  par  cet  auteur,  surtout 
la  premiere,  ramenent  son  syst^me  a  celui  que  nous  avons  expos6  au 
n°  41  :  en  effet,  notre  syst^me  a  precisement  sa  base  principale  dans  I'im- 
possibilit6  ou  du  moins  dans  la  difficulte  de  remplir  a  I'etranger  les  forma- 
lites  prescrites  au  lieu  du  domicile  de  I'individu.  Du  reste,  notre  sys- 
teme  admet  aussi  les  deux  exceptions  enoncees  par  M.  Eichhorn  sous 
les  n°*  2  et  3,  ainsi  que  nous  Fexpliquerons  au  n"  suivant.  M.  Muh- 
lenbruch,  en  parlant  des  testaments,  revient  sur  I'opinion  par  lui  emise 
dans  sa  doctrina  pandectarum  ;  il  se  range  de  I'avis  de  M.  Eichhorn.  Le 
troisieme  auteur  qui  repousse  I'application  de  la  regie  locus  regit  actum, 
en  ce  qui  concerne  la  forme  des  actes,  c'est  Hauss.  II  regarde  cette 
regie  comme  vague  et  inutile,  et  il  n'en  admet  rapplication  que  dans 
deux  cas :  le  premier,  lorsqu'il  s'agit  d'actes  de  procedure  (si  de  processu 
ordinando  quseritur)  ;  le  second,  lorsque  les  parties,  en  vertu  de  leur 
autonomie,  se  sont  soumises  aux  lois  du  pays  dans  lequel  elles  ont  passe 
un  acte.  L'  opinion  de  cet  auteur  a  sa  base  dans  une  confusion  d'id6es  : 
il  a  cherche  <i  appliquer  la  r^gle  locus  regit  actum  non  seulement  a  la 
forme  des  actes,  mais  encore  a  leur  substance  ;  n'ayant  pu  parvenir  a 
justifier  cette  opinion,  il  a  rejet6  enti^rement  la  dite  regie,  et  il  a  cru  trou- 
ver  uniquement  dans  la  volont6  expresse  ou  tacite  des  parties,  la  base  de 
I'application  des  lois  du  lieu,  quant  k  la  forme  et  quant  a  la  matiere  de 
I'acte.  L'acte  fait  d'apres  les  formes  prescrites  par  la  loi  du  lieu  de  sa 
redaction  est  valable,  non  seulement  par  rapport  aux  biens  meubles  ap- 
partenant  ;\  I'individu  et  qui  se  trouvent  au  lieu  de  son  domicile,  mais 
encore  par  rapport  aux  immeubles,  en  quelque  endroit  qu'ils  fussent 
situ6s.  Cette  dernlere  proposition,  selon  la  nature  des  choses,  admet  une 
exception,  dans  le  cas  ou  la  loi  du  lieu  de  la  situation  prescrit,  a  I'^gard 
des  actes  translatifs  dc  la  propri6l6  des  immeubles  ou  qui  y  affectent  des 
charges  r6elles,  des  formes  particulieres  qui  ne  peuvent  etre  remplies 
ailleurs  que  dans  ce  m6me  lieu  ;  telles  sont  la  redaction  des  actes  par  un 
notaire  du  meme  territoire,  la  transcription  ou  I'inscription  aux  registres 
tenus  dans  ce  territoire,  des  actes  d'ali6nation,  d'hypoth6que,  etc.  L'acte 
fait  dans  un  pays  Stranger  suivant  16s  formes  qui  y  sont  prescrites,  ne  perd 


CH.  X.]  REAL    PROPERTY.  727 

inter  vivos,  except  according  to  the  formalities  prescribed 
by  the  local  law.  Thus,  in  England,  no  instrument 
not  under  seal  can  operate  as  a  conveyance  of  land,  so 
as  to  give  a  perfect  title  thereto.  An  instrument, 
therefore,  not  under  seal,  executed  in  a  foreign  country, 
where  no  seal  is  required  to  pass  the  title  to  lands, 
would  be  held  invalid  to  pass  land  in  England.'  The 
same  rule  is  established  in  America,  where  it  is  held, 
(as  we  have  seen,)  that  the  title  to  land  can  be  acquired 
and  lost  only  in  the  manner  prescribed  by  the  law  of 
the  place  where   the  property  is    situate."     [But  the 


pas  sa  force,  quant  a  sa  forme,  par  le  retour  de  I'individu  au  lieu  de  son 
domicile  ;  aucune  raison  de  droit  ne  milite  en  faveur  de  I'opinion  contraire. 
La  regie  locus  regit  actum  ne  droit  pas  etre  etendue  au  dela  des  limites 
que  r\ous  lui  avons  trac6es  au  n°  40 ;  ne  s'applique  qu'a  la  forme  exte- 
rieure,  et  non  pas  k  la  mali^re  ou  substance  des  actes,  ainsi  que  nous  I'ex- 
pliquerons  encore  au  ^  suivant.  Ainsi,  dans  un  testament,  la  capacity, 
de  la  personne  et  la  disponibilit6  des  biens  ne  se  reglent  point  par  la  loi  du 
lieu  de  la  redaction.  Dans  les  dispositions  entre-vifs,  soit  a  titre  onereux, 
soit  a  titre  gratuit,  la  loi  du  lieu  de  la  redaction  pent  avoir  influ6,  soit  sur 
I'ensemble  de  Facte,  soit  sur  les  termes  employes  par  les  parties  ;  et,  sous 
ce  double  litre,  cette  loi  peul  etre  consultee  par  les  juges  comme  moyen 
d'interpretalion ;  mais  elle  ne  forme  pas  la  loi  d6cisive,  i  moins  que  les 
parties  ne  s'y  soient  soumises  expressement.  La  r^gle  indiqu6e  au  n"  40 
ne  s'applique  pas  seulement  aux  actes  publics  ou  solennels,  mais  aussi 
aux  actes  sous  signature  privee,  comme,  par  exemple,  les  testaments  olo- 
graphes.  Feu  M.  Merlin  fait  remarquer  que  'la  regie  locus  regit  actum 
est  g6n6rale,  et  il  faudrait,  pour  la  rcstreindre  aux  testaments  reyus  par 
personnes  publiques,  une  exception  autoris6e  par  une  loi  expresse.'  Nous 
ajouterons  que  les  raisons  expos6es  au  n°  41  s'appliquent  aux  actes  sous 
seing-prive  comme  aux  actes  publics.  Nous  regardons  comme  une  erreur 
I'opinion  contraire  profess6e  par  M,  Duranton.  Nous  empruntons  a  M. 
Pardessus  une  observation  importante.  C'est  que,  dans  tous  les  cas  ou 
I'une  des  parties  invoque  un  acte  pass6  hors  du  royaume,  il  faut  avant  tout 
s'assurer  que  I'acte  a  cte  passe  dans  le  lieu  r6gi  par  les  lois  auxquclles  on 
veut  le  soumettre."     Id.  ^  42  to  ^  47,  p.  350  to  354. 

1  Ante,  ^  3G3,  364.  See  Dundas  v.  Dundas,  2  Dow  &  Clark,  349  ; 
Abel!  V.  Douglass,  4  Denio,  305  ;  Coppin  t'.  Coppin,  2  P.  Will.  201,  293  ; 
2  Fonbl.  Equity,  B.  5,  ch.  1,  ^  6,  note,  p.  444,  445. 

2  Ante,  sS  427,  428  ;    United  States  v.  Crosby,  7  Cranch,  115  ;    Cutter 


728  CONFLICT    OF    LAWS.  [CH.    X. 

assignment  of  a  mortgage  of  real  estate  is  to  be  go- 
verned bj  the  law  of  the  State  where  made,  and  not 
of  the  State  where  the  property  is/] 

§  436.  Erskine,  in  his  Institutes,  states  this  to  be  the 
law  of  Scotland.  "■  In  the  conveyance,"  says  he,  "  of 
an  immovable  subject,  or  of  any  right  affecting  heritage, 
ihe  grantor  must  follow  the  solemnities  established  by 
the  law,  not  of  the  country,  where  he  signs  the  deed, 
but  of  the  State  in  which  the  heritage  lies,  and  from 
which  it  is  impossible  to  remove  it.  For  though  he  be 
subject  with  respect  to  his  person  to  the  Le:^  domi- 
cilii, that  law  can  have  no  authority  over  property  which 
hath  its  fixed  domicil  in  another  territory,  and  which 
cannot  be  tried,  but  before  the  Courts,  and  according 
to  the  laws  of  that  State  where  it  is  situated.  And 
this  rule  is  so'  strictly  adhered  to  in  practice,  that  a 
disposition  of  an  heritable  jurisdiction  in  Scotland, 
executed  in  England  after  the  English  foi:m,  was 
not  sustained,  even  as  an  obligation  to  compel  the 
grantor  to  execute  a  more  formal  conveyance."  ^     He 


V.  Davenport,  1  Pick.  R.  81,  86  ;  Hosford  v.  Nichols,  1  Page,  R.  220; 
Wills  V.  Cowper,  2  Hamm.  R.  124  ;  S.  C.  Wilcox's  Rep.  278  ;  Kerr  v. 
More,  9  Wheaton,  R.  566  ;  McCormick  v.  SuUivant,  10  Wheaton,  R. 
192  ;  Darby  v.  Mayer,  11  Wheaton,  R.  465. 

^  Dundas  v.  Bowler,  3  McLean,  397. 

2  Ersk.  Inst.  B,  3,  tit.  3,  ^  40,  p.  515  ;  Id.  ^  41 ;  2  Kames  on  Equity, 
B.  3,  ch.  8,  ^  2,  p.  328.  —  ButErskine,ia  the  same  section,  makes  a  distinc- 
tion between  contracts  to  convey  real  estate  situate  in  Scotland,  and  actual 
transfers,  holding,  that  if  the  contract  to  convey  is  good  by  the  lex  loci 
contractus,  it  will  be  enforced  in  Scotland  ;  but  an  actual  transfer  will  not. 
"  But,"  says  he,  "  though  obligations  to  convey,  if  they  be  perfected 
secundum  legem  domicilii,  are  binding  here  ;  yet  conveyances  themselves, 
if  of  subjects  within  Scotland,  are  not  always  effectual,  if  they  are  not 
executed  according  to  the  solemnities  of  our  law."  The  other  part  of  the 
section  has  been  already  cited  in  a  note,  ante,  ^  365.  The  common  law, 
as  we  have  seen,  with  masculine  vigor,  and  upon  principle,  rejects  such 


CH.  X.]  HEAL   PROPERTY.  729 

is    well   borne    out  in  this  doctrine  by  other   author- 
ities.^ 

§  437.  Boullenois  admits,  that,  when  an  incapacity 
to  do  an  act,  or  to  make  a  conveyance  of  a  thing,  ex- 
cept by  certain  formalities,  if  created  by  the  Lex  rei 
sitcv,  that  law  must  be  observed  in  regard  to  that  thing, 
although  the  party  be  otherwise  capable  by  the  law  of 
his  domicil.-     He  adds,  in  another  place,  that,  if  these 


niceties  ;  and  indeed  it  seenns  repudiated  by  many  of  the  learned  Judges  of 
Scotland.  Ante,  ^  365.  See  Lang  v.  Whitlaw,  2  Shaw,  App.  Cases, 
p.  13  ;  S.  C.  G  Wils.  &  Shaw,  p.  66,  67,  note  ;  Brack  v.  Johnston, 
5  Wils.  &  Shaw,  p.  61. 

1  Ante,  ^  365,  366,  367  ;  Jerningham  v.  Herbert,  1  Tamlyn,  R.  103  ; 
Fergusson  on  Marriage  and  Div.  p.  395,  397.  —  Mr.  Burge,  speaking  on 
this  subject  says  :  "  There  is  a  perfect  uniformity  in  all  systems  of  juris- 
prudence in  the  adoption  of  this  rule.  Thus  a  contract  in  England  for  the 
sale  to  A.  of  immovable  property  situated  in  England,  or  in  those  colonies 
which  are  governed  by  the  law  of  England,  would  transfer  the  dominion 
in  equity,  and  A.  would  become  the  owner;  but  if  the  property  were 
situated  in  British  Guiana,  it  would  not  transfer  the  dominion.  On  the 
other  hand,  a  contract  in  British  Guiana  for  the  sale  of  immovable  pro- 
perty situated  in  England,  or  in  those  colonies,  would  transfer  the  domi- 
nium on  that  property,  but  it  would  not  transfer  the  dominium  of  property 
situated  in  British  Guiana."  2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt. 
2,  ch.  9,  p.  865. 

2  1  Boullenois,  Observ.  23,  p.  476,  477,  488,492,  498,  499,  500;  ante, 
^  240.  —  Boullenois,  speaking  on  this  subject,  says  :  "  Ces  formes  distinct- 
ives  des  contrats  font,  pour  la  plupart,  dict^es  par  le  Droit  commun  ;  mais 
comme  M'^  Ch.  du  Molin  observe  que  chacune  des  Yilles  ayant  Jurisdic- 
tion, peut  prescrire  une  forme  particuliere  a  chaque  esp^ce  de  contrat,  il 
pourroit  arriver  que  ces  formes,  ou  formalit6s  varieroient  a  I'infini ;  que 
dans  le  lieu  du  contrat,  il  y  en  auroit  une  ;  que  dans  le  lieu  ou  domicile, 
il  y  en  auroit  une  autre;  et  que  dans  le  lieu  de  la  situation,  il  y  en  auroit 
encore  une  autre.  Dans  ces  cas,  si  ceux  qui  contractent,  sont  domicilies 
dans  un  lieu,  qu'ils  contractent  dans  un  autre,  et  que  la  chose  dont  ils 
contractent,  soit  encore  dans  un  autre  quelle  forme  les  contractants  don- 
neront-ils  a  Facte,  eu  6gard  a  toutes  ces  formalites  variees  et  multipli6s? 
S'il  6toit  clair  que  ces  formes  appartenoient  i  la  solemnite,  il  n'y  auroit 
pas  de  difficulte  qu'il  faudroit  suivre  ce  que  la  Loi  du  lieu  ou  I'acte  .se  pas- 
seroit,  prescriroit  a  cet  egard.     Si  ces  formalites  etoient  habilitantes  la 


730  CONFLICT    OF   LAWS.  [CH.  X. 

formalities  are  attached  to  things  and  not  to  persons, 
then  the  laws  which  prescribe  them  are  real ;  and,  con- 
sequently, the  law  of  the  place  of  their  situation  must 
govern.^     Accordingly,  he  lays  it  down  as  a  funda- 


personne,  il  faudioit  suivre  la  Loi  du  domicile  de  la  personne  habilil^e. 
Si  ail  contraire  elles  appartenoient,  sive  ad  substantialia  contractus,  sive 
ad  naturalia,  sive  ad  accidentalia  aut  complementaria,  c'est  la  ou  se  ren- 
contreroit  la  v6ritable  difficult^ ;  et  si  vous  donnez  pour  principe  general 
et  indefini,  qu'il  faut  toujours  suivre  la  Loi  da  lieu  ou  se  passe  le  contrat, 
ou  bien  qu'il  faut  toujours  suivre  la  Loi  de  la  situation,  ou  bien  qu'il  faut 
toujours  suivre  la  Loi  du  domicile  des  contractants,  il  est  certain  que  vous 
donnerez  un  faux  principe  ;  parce  que,  comme  on  le  verra  ci-apres,  tantot 
ces  formalit^s  appartiennent  au  contrat,  tantot  elles  appartiennent  et  de- 
pendent de  la  qualit6  de  la  personne."  1  Boullenois,  Observ.  23,  p.  465. 
Boullenois,  in  another  place,  says  ;  "  Qaelque  vari^t6  qu'il  y  ait  dans  ce 
nombre  consid6r6  de  differentes  formalites  ou  solemnites,  et  quelque  diffe- 
rence qu'il  y  ait  meme  dans  nos  Auteurs  pour  le  langage,  ils  conviennent 
unanimement,  que  pour  qu'un  acte  soit  parfait,  ex  omni  parte,  il  y  a  des 
choses  requises,  pour  habiliter  et  rendre  capables  les  personnes  qui  con- 
tractent,  et  elles  sont  attachees  a  la  personne,  et  dependent  du  domicile  ; 
qu'il  y  en  a  de  requises  pour  la  preuve  et  I'authenticite,  et  elles  dependent 
du  lieu  ou  se  passe  le  contrat ;  qu'il  y  en  a  attache6s  aux  choses,  et  elles 
dependent  de  la  Loi  de  la  situation  ;  qu'il  y  en  a  qui  sont  de  I'essence  et 
de  la  substance  int^rieure  et  visc^rale  des  actes,  et  ces  choses  sont,  selon 
la  nature  de  chaque  acte,  commun^ment  et  assez  universellement  les 
m^mes  partout ;  qu'il  y  en  a  qui  fleuent  de  la  nature  etesp^ce  dont  sont  les 
contrats,  soit  qu'elles  proviennent  de  la  propre  nature  de  ces  contrats,  soit 
qu'elles  y  soient  liees  et  attach6es  par  un  usage  bien  constant,  et  une  Cou- 
tume  inv6t6r6e,  et  ce  sont  ces  choses  qui  peuvent  faire  naitre  le  plus  de 
contestation;  qu'il  y  en  a  qui  ne  servent  que  de  complement  aux  actes 
d6ja  formes,  et  elles  dependent  des  differentes  Loix  ;  et  qu'il  y  en  a  en- 
core qui  ne  sont  que  de  pure  discipline,  et  d'autres  dont  I'accomplissement 
plus  ou  moins  prompt  depend  de  la  volont6  des  parties,  et  celles-ci  n'en- 
trainent  pas  de  grandes  difficulties.  Mais  la  veritable  difficult^  en  cette 
matitire,  est  de  savoir  bien  discerner  toutes  ces  formalites,  et  les  ranger 
chacune  dans  la  classe  qui  leur  appartient,  afin  de  ne  pas  appliquer  a  une 
formalite  d'une  certainc  classe,  des  principes  et  des  decisions  qui  ne  con- 
venient qu'a  une  formalite  d'une  autre  classe.  Plusieurs  exemples  vont 
faire  sentir  cette  difficult6."  1  Boullenois,  Obser.  23,  p.  4.56,  457  ;  Id. 
p.  488,  492,  498,  499.  See  Merlin,  R6pert.  Testament,  ^  1,  5,  art,  1,  2,  3. 
1  1  Boullenois,  Obs.  23,  p.  467 ;  Id.  p.  499,  500.  See  Livermore,  Diss, 
p.  58  to  60  ;  Henry  on  Foreign  Law,  p.  50. 


CII.  X.]  REAL   PROPERTY.  731 

mental  rule  :  Quand  la  hi  ex'ige  certaines  formalites, 
lesqiielles  sont  aUachees  aux  choses  mimes,  il  faiit  sidvre  la 
hi  de  ki  situation}  Yet  strangely  enough,  he  departs 
from  this  general  doctrine  in  relation  to  testaments, 
upon  some  subtile  distinctions  which  he  takes,  between 
extrinsic  and  intrinsic  forms,  between  the  solemnities 
required  to  the  perfection  and  authenticity  of  an  act, 
and  those  which  relate  to  the  capacity  to  do  it,  or  to 
dispose  of  the  thing  which  is  the  subject  of  it.^ 

§  437  «.   Sandius  (John  a  Sande)  has  given  us  some 
quite  as  subtile  distinctions,  insisting  that  there  is  a 
wide  distinction  between  the  solemnities  of  an  aliena- 
tion and  the  thing  of  which  the  alienation  is  the  sub- 
ject;    Quod  multiim  inter  sit  inter  soknnitates  dispositionis 
et  rem,  de  qiicL  sit  dispositio.     The  solemnities  respect  but 
the  form  of  the  disposition  or  alienation  and  the  things 
disposed  of  or  alienated  constitute  the  substantial  mat- 
ter thereof;    So  that  what   respects    the  solemnities, 
affects  only  the  form  of  the  act,  and  not  the  things. 
Sohnnitates  sunt  forma  ;   res  est  siibjectum  dispositionis  ; 
quare   tale   statidwn   magis   efficere   videtur   dispositionem 
ipsam,  qiiani  rcm.^     Accordingly,  Sandius  holds,  that,  if 
a  foreigner  makes  his  will  according  to  the  forms  and 
solemnities  of  the  law  of  the  place  where  it  is  made,  it 
will  be  valid  even  as  to  immovables  in  another  country, 
where  different  forms  and  solemnities  are  required.    He 
assigns  the  following  reason.     Hatio  Jmjus  sententice  est, 
quod  statidum  vet  consuetudo,  prcescribens  solennitates  testa- 


1  2  Boullenois,  Observ.  46,  p.  467,  Rule  4  ;  ante,  ^  240.     See  1  Boul- 
lenois,  Obser.  9,  p.  151. 

2  1  Boullenois,  Obser.  21,  p.  422  to  426. 

3  1  Boullenois,  Obser.   21,  p.  422,  423  ;    Sand.  Decis.  Frisic.  Lib.  4, 
tit.,  Defin.  14,  p.  142,  143. 


732  CONFLICT    OF   LAWS.  [CH.   X. 

menti,  non  afficiat  res  Testatoris,  neque  ejus  personam,  sed 
ipsam  dispositionem,  qiice  fit  in  loco  statuti  vel  consuetudinis. 
At  in  cujusvis  actus  solennitate  mspicitiir  consuctiido  loci, 
lihi  is  celehratur,  eoqiie  in  iis  quce  spectant  ad  formam  et 
solennitatcs  testamenU,  inspicitiir  consuetudo  loci,  uU  illiid 
factum  est,  licet  testator  ibi  larem  fixmn  non  liaheat}  And 
again  ;  Deinde  hcec  sententia  non  facile  ad  praxin  trans- 
ferri potest,  uti  incommoda  testari  volentihus,  qui  si  liabeant 
hona  sita  in  diversis  regionihus,  quce,  quod  ad  testamenti 
solennitates  attinet,  diversis  morihus  reguntur,  non  possunt 
secundum  hanc  sententiam  uno  testamento  defungi,  sed  si 
nolint  pro  parte  intestati  decedere,  coguntur  contra  juris 
rationem  plura  testamenta  cxarare ;  singula  scilicet  juxta 
consuetudinem  cujusque  regionis,  vel  in  uno  testamento  sequi 
consuetudines  plurium  locorum,  et  actum  per  se  individuum 
huic,  et  illi  loco  diversimode  impartiri} 

§  438.  D'Argentre  and  Burgundus  maintain  with 
great  clearness  the  general  doctrine,  that  the  law  rd 
sitm  must  govern  as  to  the  solemnities  of  alienation, 
inter  vivos  and  testamentary.^  D'Argentre's  opinion 
has  been  already  in  part  stated.^  He  adds  in  another 
place.  Cum  de  rebus  soli,  id  est  immobilibus,  agitiir,  (qu'ils 
appellent  dlieritage,)  et  diversa  diversarum  possessionem 
loca,  et  situs  proponuntur  in  acqidrendis,  transferendis,  aut 
asserendis,  dominiis,ct  in  controversia  est,  quo  jure  rcgantur, 
certissima  usu  obscrvatio  est,  id  jus  de  plmnbits  spectari, 
quod  loci  est,  et  suos  cuique  loco,  leges,  statida,  et  consuetii- 


1  Sand.  Decis.  Frisic.  Lib.  4,  lit.  1,  Dcfin.  14,  p.  142,  143. 

2  Id.  p.  123. 

3  1  Boullenois,  Observ.  6,  p.  129  ;  Id.  Observ.  9,  p.  151 ;  Id.  Obser.22, 
p.  422,  425  ;  Cujaccii,  Opera.  Tom.  3,  Observat.  Lib.  14,  ch.  12,  p.  399, 
edit.  1758;  2  Burge,  Comm.  on  Col.  on  For.  Law,  Pt.  2,  ch.  9,  p.  866. 

4  Ante,  ^  426. 


CH.  X.]  REAL   PROPERTY.  733 

dines  servandos ;  et  qui  cui  mores  de  rehis,  territorio,  et 
potestatihiis  finihus  sint  recepii,  sic  tit  de  talibus  nulla  cvjits- 
qiiam  potestas  sit  prceter  territoni  legem.  Sic  in  cordracti- 
hiis,  sic  in  testamcntis,  sic  in  commercii  omnibus,  et  locis  con- 
veniendi  constittdum  ;  ne  contra  situs  legem  in  immoUUhiis 
qiddquam  decerni  possit  privato  consensu ;  et  par  est  sic 
judicari}  Burgundus,  in  addition  to  what  has  been 
ah'eady  cited/  says  in  another  place  ;  Siquidcm  solemni- 
tates  testamenti  ad  jura  personalia  non  pertinent ;  quia  suni 
qucedam  qualitas  bonis  ipsis  impressa,  ad  guam  tenetur 
respicere  qiiisqids  in  bonis  aliqidd  alter  at.  Nam,  id  jura 
realia  non  porrigunt  effectum  extra  territorium  ;  ita  et  hanc 
prce  se  virtidem  fcrunt,  quod  nee  alieni  territorii  leges  in  se 
recipiant?  This  is  also  the  opinion  of  other  distin- 
guished jurists."* 

§  439.  Froland  treats,  as  clearly  real,  all  laws,  which 
respect  the  alienation  of  immovable  property,  and  con- 
sequently that  it  is  governed  by  the  Lex  reisitw.  He 
lays  down,  as  a  fundamental  rule;  La  premiere  (chose,) 
que  le  Statid  Reel  ne  sort  point  de  son  territoire.  Et  de  Id, 
vient,  que  dans  le  cas,  ou  il  s^agit  de  successions,  Sfc.  d' alie- 
nation cVimmeubles,  S^-c.  il  faut  s'aitacher  aux  coidmnes 
des  lieu,  oil  les  fonds  sont  situes.^     Cochin  lays  down  the 


1  D'Argent.  De  Briton.  Leg.  Art.  218,  n.  2,  p.  647  ;  ante,  ^  371  a. 

2  Ante,  ^  372,  433,  438  ;  post,  §  477. 

3  Burgundus,  Tract.  6,  n.  2,  3,  p.  128,  129  ;  post,  (}  477  ;  Rodenburg, 
De  Divers.  Stat.  tit.  2,  ch.  3,  {i  1,  2  ;  2  Boullenois,  Appx.  p.  1!),  20,  21  ; 
1  Boullenois,  Observ.  6,  p.  129,  130;  Id.  Obser.  9,  p.  151  ;  Id.  Obser. 
21,  p.  4-22,  423,  425  ;  ante,  ^  433  a  ;  4  Burge,  Coram,  on  Col.  and  For. 
Law,  Pt.  2,  ch.  12,  p.  581  to  585  ;  post,  ^  477. 

1  Ante,  ^  363  to  373.  See  2  Burge,  Comra.  on  Col.  and  For  Law, 
Pt.  2,  ch.  9,  p.  865,  866  ;  1  Boullenois,  Obser.  21,  p.  423,  424  ;  Sand. 
Decis,  Frisic.  Lib.  4,  tit.  1,  Defin.  14,  p.  142,  where  many  opinions  of 
Jurists  are  cited. 

5  1  Froland,  Mem.  156  ;  Id.  65. 

CONFL.  62 


734  CONFLICT    OF    LAAYS.  [CH.  X. 

rule,  that,  though  the  formalities  of  an  instrument  [actc) 
may  be,  and  indeed  ought  to  be,  according  to  the  laAV 
of  the  place  of  the  instrument ;  yet,  when  the  clauses 
or  contents  of  such  an  instrument  are  to  be  applied  to 
property  in  another  country,  the  law  rei  sitw  must  go- 
vern. Les  formalites,  dont  irn  ade  doit  etre  revetu,  se  reg- 
lent  par  la  loi,  qui  exerce  son  awpire  dans  le  lieu,  oil  I'acte  a 
StS  passe  ;  mais  quand  il  s'agit  d  'appliqiier  les  clauses  qiCil 
renferme,  aiix  Mens  des  parties  contractantes,  c'est  la  hi 
de  la  situation  de  ces  Mens,  qui  doit  seule  etre  consultee} 

§  440.  But  there  are  many  other  jurists,  who  main- 
tain the  same  opinion,  as  Cochin,  holding,  that,  if  the 
act  or  instrumeut  have  the  formalities,  which  are  pre- 
scribed by  the  law  of  the  place  where  it  is  made,  it 
ought  to  have  a  universal  operation  ;  ^  and  they  apply 
it  especially  to  the  case  of  testamentary  dispositions  of 
real  property.^     They  found  themselves  upon  the  ex- 


^  Cochin,  CEuvres,  Tom.  5,  p.  697,  4to.  edit.  —  There  is  some  difficulty 
in  reconciling  this  passage  with  another  cited  in  the  note  to  ^  440.  Per- 
haps Cochin  only  means  here  to  say,  that  the  solemnities  of  the  place, 
where  the  act  is  done,  are  to  be  observed  ;  but  that  the  interpretation  of 
the  clauses  or  provisions  of  the  instrument  are  to  be  according  to  the 
law  of  the  situs.  See  also  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2, 
ch.  9,  p.  866. 

2  P.  Voet,  de  Statut.  ^  4,  ch.  2,  ^  6,  p.  123,  ^  7,  p.  124,  edit.  171.5  ;  Id. 
p.  137,  edit.  1661  ;  J.  Voet,  ad  Pand.  Lib.  1,  tit.  4,  P.  2,  ^  5,  6,  p,  39, 
\  10,  p.  43,  44  ;  1  Boullenois,  Obser.  21,  p.  426  to  p.  433.  —  Mr.  Liver- 
more,  in  his  Dissertations,  sums  up  the  opinions  of  different  Jurists. 
Liverm.  Diss.  ^  78  to  ^  214,  p.  69  to  p.  130.  So  does  Mr.  Burge. 
4  Burge,  Comm.  Pt.  2,  ch.  12,  p.  581  to  p.  585.  Sandius,  or  Sande,  has 
also  brought  together  the  opinions  of  different  Jurists  on  this  subject. 
Sand.  Decis.  Frisic.  Lib.  4,  tit.  1,  Defin.  14,  p.  142,  143. 

2  See  Rodenburg,  de  Div.  Stat.  tit.  2,  ch.  3  ;  2  Boullenois,  Appx. 
p.  19;  1  Boullenois,  p.  414  to  421;  Id.  Observ.  21,  p.  422  to  433; 
1  Hertii,  Opera,  ^  4,  n.  10,  p.  125,  edit.  1737;  Id.  p.  179,  edit.  1716  ;  J. 
Voet,  ad  Pand.  Lib.  1,  tit.  4,  p.  2,  13,  p.  43  :  Bouhier,  Cout.  de  Bourg. 
ch.  23,  ^  81  to  ^  89,  p.  460  ;  Vinnius  ad  Instit.  Lib.  2,  tit.  10,  ^  14,  n.  5 ; 
1  Boullenois,  Obser.  21,  p.  426,  427  ;   Merlin,  Repert.  Loi,  *5»  6,  art.  6,  7. 


CH.  X.]  RExlL   PROPERTY.  735 

treme  inconyonience,  wliicli  would  otherwise  result  from 
requiring  a  party  to  make  different  testaments  for  their 
property,  lying  in  different  countries,  and  the  almost 
utter  impossibility,  in  many  cases,  of  ascertaining  at  a 
critical  moment,  what  are  the  peculiar  solemnities  pre- 
scribed by  the  laws  of  each  of  these  countries.^  They 
seem  wholly  to  have  overlooked,  on  the  other  side,  the 
inconvenience  of  any  nation  suffering  property,  locally 
and  permanently  situate  within  its  own  territory,  to  be 
subject  to  be  transferred  by  any  other  laws,  than  its 
own ;  and  thus  introducing  into  the  bosom  of  its  own 
jurisprudence  all  the  innumerable  diversities  of  foreign 
laws,  to  regulate  its  own  titles  to  such  property,  many 
of  which  laws  can  be  but  imperfectly  ascertained,  and 
many  of  which  may  become  matters  of  subtile  contro- 
versy."    Some  of  these  jurists  press  their  doctrine  so 


1  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  3  ;  2  Boullenois,  App.  p.  19  ;  1  Boul- 
lenois,  p.  414  to  417;  Vinnius,ad  Instit.  Lib.  2,  tit.  10,^  14,  n.  5  ;  1  Boul- 
lenois, Obser.  21,  p.  426,  427  ;  Hertii,  Opera,  De  Collis.  Leg.  ^  4,  n.  10, 
p.  126,  edit.  1737;  Id.  p.  179,  edit.  1716;  Id.  n.  23,  p.  133,  edit.  1737; 
Id.  p.  189,  edit.  1716  ;  Foelix,  Conflit  des  Lois,  Revue  Etrang.  et  Franc. 
Tom.  7,  1840,  i^*  41,  p.  347,  348.  John  Voet  has  given  the  reasoning  on 
this  side  of  the  question.  J.  A^oet  and  Pand.  Tom.  1,  Lib.  1,  tit.  4,  P'  2, 
§  13,  15,  p.  45,  46,  See  also  4  Burge,  Comm.  on  Col.  and  For.  Law, 
Pt.  2,  ch.  12,  p.  590  ;  post,  444  a. 

2  Cochin  says,  it  is  one  of  the  most  uniform  principles,  that  the  form  of 
acts  depends  upon  the  law  of  the  place  where  they  are  passed  ;  so  that, 
if  a  man  is  domiciled  at  Paris,  and  there  has  all  his  property,  (biens,)  but 
he  makes  his  testament  in  another  province  under  a  different  law,  the  law 
of  the  latter  is  alone  to  be  regarded  in  its  form,  though  the  succession  to 
the  testator,  either  of  heirship  or  testamentary,  may  be  regulated  by  the 
law  of  Paris.  Cochin,  CEuvres,  Tom.  2,  p.  72,  4to.  edit.  See  ante, 
^  43!}.  D'Aguesseau  treats  with  some  sarcasm  those  who  venture  to  sug- 
gest a  doubt  on  the  point.  "  We  leave  such  discussions,"  says  he,  "  to 
the  ultramontane  Doctors.  We  say  with  D'Argentr6,  that  these  ques- 
tions are  not  worthy  to  occupy  a  moment's  attention.  No  one  can  doubt, 
that  the  formalities  of  a  testament  ought  to  be  governed  by  the  law  of  the 


736  CONFLICT    OF   LAWS.  [CH.  X. 

far,  as  to  doubt,  whether  a  transfer,  made  according  to 
the  solemnities  of  the  place,  where  the  property  is  lo- 
cally situate,  would  be  good,  if  not  also  executed  accord- 
ing to  the  law  of  the  place  where  the  act  is  done.^ 

§  441.  The  opinion  of  these  jurists  is  supported  by 
Dumoulin.  His  language  is ;  Et  est  omnium  dodoriim 
sententia,  iiUcumque  consiietiido,  vel  statutum  locale  disponit 
de  solemnitate,  vel  forma  actus,  licjari  ctiam  exteros,  ihi  ac- 
tum ilium  gerentes,  et  gestum  esse  validum,  et  efficacem  iihi- 
qiie,  etiam  suikt  honis  solis  extra  territorium  consuetiidinis 
vel  statuti?     In  another  place  he  says ;  Aid  statutum  lo- 


place  where  the  act  is  done."  D'Aguesseau,  ffiuvres,  Tom.  p.  637, 
4to.  edit. 

^  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  3  ;  2  Boullenois,  Appx.  p.  12  ; 
1  Boullenois,  417;  Id.  Observ.  21,  p.  428,429,430.  Grotius  appears 
to  have  held  the  same  opinion,  and  to  have  applied  it  to  the  case  of  wills 
and  testaments.     See  post,  ^  479,  where  his  opinion  is  cited. 

2  Molin.  Opera,  Tom.  2,  edit.  1681,  Consil.  53,  ^  9,  p.  965  ;  ante,  ^  260, 
note,  ^  274  a,  ^  372  a ;  1  Boullenois,  Observ.  21,  p.  423,  429.  Mr.  Liver- 
more  manifestly  entertained  the  opinion,  that  it  was  sufficient  for  a  testa- 
ment of  immovable  property  to  have  the  formalities  prescribed  by  the  law 
of  the  testator's  domicil.  After  adverting  to  Dumoulin's  division  of  sta- 
tutes into  those  which  relate  to  the  solemnities  and  forms  of  acts,  (nudatn 
ordinationem  vel  solemnitatem  actus,)  and  those  which  concern  the  merits 
and  decisions  of  causes,  (quae  meritum  causae  vel  decisionem  concernunt,) 
he  added  :  "  The  statutes  of  the  first  class  I  do  not  consider  to  be  either 
personal,  real,  or  mixed.  They  do  not  act  directly  upon  persons  nor  upon 
property,  but  upon  the  act  for  the  purpose  of  determining  its  authenticity. 
The  laws  of  some  countries  require,  that  a  testament  shall  be  made  in 
presence  of  seven  witnesses.  In  other  countries  the  law  requires  only  the 
presence  of  a  notary  and  two  witnesses.  These  laws  dispose  of  the 
solemnities  of  all  testaments  made  within  their  jurisdiction  ;  but  they 
neither  affect  the  capacity  of  the  testator,  nor  do  they  dispose  of  his  pro- 
perty. The  law  of  the  testator's  domicil  determines  his  capacity  to  make 
a  testament;  the  law  of  the  place  where  his  immovable  property  is  situ- 
ated, determines,  whether  it  may  be  disposed  of  by  testament  or  not ;  the 
will  of  the  testator  disposes  of  his  property;  and  the  sole  purpose  and 
effect  of  the  statute,  which  requires  a  certain  number  of  witnesses  to  a 
testament,  is  to  show,  whether  that  Avill  has  been  expressed  or  not." 


CH.  X.]  REAL   PROPERTY.  737 

qidtiw  de  Ms,  quce  concermmt  niidam  ordinationem  vel  solem- 
nitatem  actus,  et  semper  inspicitiir  statutum  vel  coiisiietiido 
loci,  tibi  actus  celehratur,  sive  in  contractibiis,  sive  injiidiciis, 
sive  in  tcstamentis,  sive  in  imtnimeniis,  aid  aliis  confici- 
endis.  Ita  quod  testamentwn, factum  coram  duohis  tcstihus 
in  hcis,  id)i  non  reqidritur  major  solemnitas,  valet  uhique. 
Idem  in  omni  alio  actu}  And  yet  Dumoulin  in  another 
place  uses  language  not  very  consistent  with  the  fore- 
going, unless  indeed  he  is  there  to  be  understood  as 
speaking,  not  of  the  forms  and  solemnities  of  testaments, 
but  of  the  operation  and  interpretation  thereof.  Sed 
emergit  incidens  qiiwstio,  cujus  loci  inspiciatur,  an  loci  testa- 
menti,  contractus,  vel  loci  dominantis,  an  vero  loci  servientis  ? 
Et  omnino  dicendum  inspiciendam  consiietudinem  hci  servien- 
tis, sen  rei,  quce  conceditiir? 

§  441 «.  Bouhier  maintains,  that  in  general  the  forms 
and  solemnities  of  all  acts  done,  (which  of  course  in- 
clude testaments,)  should  be  according  to  the  law  of  the 
place  where  the  acts  are  done,  even  when  the  property 
is  situated  elsewhere ;  at  least  if  the  custom  of  the  situs 
is  not  in  opposition  to  it.^  He  lays  it  down  in  another 
place  among  his  general  rules.  Tout  statut,  qui  concerne 
les  formalites  extrinseques  des  actes  et  leur  aidhenticite,  est 
personnel;  en  sorte  que,  quand  Vacte  est  passe  dans  les  for- 
mes usitecs  an  lieu,  oil  il  est  redige,  il  a  par  tout  son  execu- 


1  Molin.  Opera,  Tom.  3,  ad  Cod.  Lib.  1,  tit.  1,  1.  1,  Conclus.  des  Sta- 
tutis,  p.  554,  edit.  1681  ;  ante,  §  260  ;  post,  §  479  k  ;  4  Burgs,  Comm. 
on  Col.  and  For.  Law,  Pt.  2,  ch.  12,  p.  583  ;  1  Boullenois,  Observ.  21, 
p.  423,  424  ;  ante,  ^  365  a. 

2  Molin.  Opera,  Tom.  1,  De  Fiefs,  §  33,  n.  86,  Tom.  1,  p.  410,  edit. 
1681  ;  1  Boullenois,  Observ.  21,  p.  423,  424,  425  ;  Burgundus,  Tract.  6, 
n.  2,  p.  128 ;  Bouhier,  Cout.  de  Bourg.  ch.  23,  ^  39  to  ^  44,  p.  454,  455. 

3  Bouhier,  Cout.  de  Bourg.  ch.  28,  ^  10,  p.  550. 

62* 


738  CONFLICT    OF   LAWS.  [CH.  X. 

Hon  ;  and  he  then  applies  the  rule  expressly  to  testa- 
ments/ 

§  442.  Paul  Voet  holds  the  opinion,  that  the  solem- 
nities of  contracts  and  other  instruments  respecting  the 
transfer  of  immovable  property  are  to  be  according  to 
the  laws  of  the  place  where  the  act  is  done,  and  not  of 
the  m  utce :  for  he  holds  laws  respecting  solemnities 
not  to  be  either  real  or  personal,  but  of  a  mixed  nature. 
Stcdidwn  qidppe  circa  solemnia,  nee  est  in  rem,  nee  in  inr- 
sonam,  sed  mixti  generis?'  He  therefore  insists,  that,  if  a 
testament  is  made  according  to  the  solemnities  of  the 
place  rei  sitce,  but  not  according  to  that  of  the  testator's 
domicil,  it  will  not  be  valid  as  to  property  situate  else- 
where. Venim  (says  he)  cjuid  de  solemnibus,  in  negotiis 
adhihendis,  stcduendum  erit,  si  locoriim  statida  discrepent  ? 
Finge,  qiiempiam  testari  in  loca  domicilii,  adhibitis  solemni- 
hiis  rei  sitce,  non  sui  domicilii ;  valehitne  testamenium  rcdione 
honorum  cUihi  sitorum  ?  Respondeo,  cpiod  non.  Neque  enim 
aliter  testamentimi  valere  potest,  qiiam  si  ea  servetiir  solem- 
nitas,  qiiam  reqiiirit  locus  gestionis.^  He  further  holds, 
that  if  a  testament  is  made  by  a  person  in  his  own 
country  {sui loci)  according  to  the  forms  and  solemnities 
required  by  the  laws  thereof,  it  will  be  valid  in  respect 
to  his  immovable  property  in  other  countries,  where 
different  forms  and  solemnities  are  required.  And  this 
without  any  distinction,  whether  such  person  has  re- 
tained his  original  domicil,  or  whether  he  is  settled  in 


1  Bouhicr,  Cout.  de  Bourg.  cli.  23,  <5»  81,  82,  p.  460  ;  Id.  ch.  28,  ^  10  to 
§  20,  p.  550,  551  ;  Id.  ch.  21,  ^  219,  p.  417. 

2  P.  Voet,  De  Statut.  ^  9,  ch.  2,  n.  3,  p.  263,  edit.  1715;  Id.  p.  318, 
319,  edit.  1661. 

3  P.  Voet,  De  Statut.  §  2,  ch.  2,  n.  1,  p.  262,  edit.  1715;    Id.  p.  317, 
.edit.  1661. 


CH.  X.]  REAL   PROPERTY.  739 

another  country.  Quid,  si',  quisjnam  testetur  secundum 
solefnnia  sid  loci,  jnda  coram  notario  et  duobus  testihiis,  an 
vires  capict  testamcntum  ratione  honorum  extra  ierritorimn 
statuentis  j'accntium,  pufa  in  Frisid,  iihi  plures  solemnitates 
requiriuntur  ?  Aff.  {affirmo.)  Idque  i^rocedit,  sive  testator 
domicilium  j!?nw5  retinuerit,  sive  alio  transtulerit}  And  he 
adds,  that  if  a  foreigner  makes  his  testament  according 
to  the  law  of  the  pUice  where  he  is  only  temporarily 
abiding,  it  will  still  be  valid,  as  to  his  immovable  pro- 
perty elsewhere,  even  in  his  domicil.  Quid,  siflorensis 
secundum  loci  statutum  testamentum  condat,  iihi  tantiim  Jios- 
pitaiur,  an  valehit  alibi,  ubi '  vel  immobiUa,  vel  domicilium 
Jiabct  ?  Respondeo,  quod  ita.  Cum  enim  agatur  de  actus 
solemnitate,  qam  quoscunqiie  obligat,  in  loco  negotiiim  aliquod 
gerentes,  eiiam  obligat  forenscm  ibi  disponentem,  si  siiam  dis- 
positionem'  vel  suum  actum  velit  utilem,  licet  non  prcecise 
liget  eundem?  He  makes  an  exception,  indeed,  of  a 
party's  making  a  testament  in  a  foreign  country,  with 
a  view  to  a  fraudulent  evasion  of  the  law  of  his  own 
country.  Si  tamen  qidspiam,  id  evitaret  solemnitatem  loci 
sui  domicilii,  in  fraudem  talis  statuti,  extra  territorium  se 
conferat,  ejus  testamentum  non  valere  existumarem? 


1  P.  Voet,  De  Stat.  §  2,  ch.  2,  n.  2,  p.  262,  edit.  1715  ;    Id.  p.  317, 

318,  edit.  1G61. 

2  P.  Voet,  De  Stat.  ^  9,  ch.  2,  n.  3,  ^  262,  263,  edit.  1715  ;  Id.  p.  318, 

319,  edit.  1661  ;  post,  \  475. 

3  P.  Voet,  De  Stat.  ^  9,  ch.  2,  n.  4,  p.  264,  edit.  1715  ;  Id.  p.  318, 
319,  edit.  1661.  — In  4  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch. 
12,  p.  590.  Mr.  Burge  supposes,  that  Paul  Voet  holds  a  soniewhat  dif- 
ferently modified  opinion,  like  that  of  Rodenburg,  that  the  testament  will 
will  be  good  if  made  either  according  to  the  law  of  the  place  where  it  is 
made,  or  according  to  that  where  he  has  his  domicil.  Post,  ^  444.  See 
also  ante,  i^  365  a.  I  do  not  see  any  thing  in  the  passage  of  Paul  Voet, 
referred  to  by  Mr.  Burge,  that  leads  to  such  a  conclusion.  The  text  con- 
tains all  the  cases  put  by  Paul  Voet  on  this  point,  in  his  Work  De  Statut. 
§  9,  ch.  2. 


740  CONFLICT    OF   LAWS.  [CH.  X. 

§  443.  Huberus  supports  the  same  opinion.  "  In 
Holland/'  says  he,  "a  testament  maybe  made  before 
a  notary  and  two  witnesses.  In  Friesland  it  is  not 
valid  unless  established  by  seven  witnesses.  A  Bata- 
vian  made  a  testament  in  Holland,  according  to  tlie 
local  law,  under  which  property  situate  in  Friesland  is 
demanded.  The  question  is,  whether  the  judges  in 
Friesland  ought  to  sustain  the  demand  under  that  tes- 
tament. The  laws  of  Holland  cannot  bind  the  Frisi- 
ans ;  and,  therefore,  by  the  first  axiom,  the  testament 
would  not  be  valid  in  Friesland ;  but  by  the  third 
axiom  it  would  be  valid  ;  and,  according  to  that,  judg- 
ment should  be  pronounced  in  favor  of  the  testament. 
But  a  Frisian  goes  into  Holland,  and  there  makes  a 
testament  according  to  the  local  law  (inoj'e  loci,)  con- 
trary to  the  Frisian  law,  and  returns  into  Friesland, 
and  dies  there.  Is  the  testament  valid  ?  It  is  valid 
by  the  second  axiom ;  because  while  he  was  in  Hol- 
land, although  temporarily,  he  was  bound  by  the  local 
law ;  and  an  act,  valid  in  its  origin,  ought  to  be  valid 
everywhere  by  the  third  axiom ;  and  this  without  any 
discrimination  of  movable  or  of  immovable  property. 
So  the  law  is,  and  is  practised.^  On  the  other  hand,  a 
Frisian  makes  his  will  in  his  own  country  before  a 
notary  and  two  witnesses ;  and  it  is  carried  into  Hol- 
land, and  property  situate  there  is  demanded.  It  will 
not  be  allowed ;  because  the  testament  was  from  the 
beginning  a  nullity,  it  being  made  contrary  to  the  local 
law.  The  same  law  will  govern  if  a  Batavian  should 
make  a  testament  in  Friesland,  although  it  would  be 


1  The  axioms  here  referred  to  by  Huberus  are  those  already  stated  in 
^29. 


CH.  X.]  REAL   PROPERTY.  741 

valid  if  made  in  Holland ;  for  in  truth,  such  an  instru- 
ment would  from  the  beginning  be  a  nullity,  for  the 
reasons  just  stated."  ^ 

§  443  a.  What  Iluberus  here   says   may  seem  not 
very  consistent  with  what  he  has  said  in  another  pas- 
sage, already  cited  ;  2  but  he  has  endeavored  to  recon- 
cile  the  passages  by  the  following  remarks.     But  it 
may  be  asked,  (says  he,)  whether  what  we  have  already 
said  does  not  give  rise  to  an  objection,  that  if  a  testa- 
ment is  made,  which  is  valid  by  the  law  of  the  place, 
it  ought  to  have  the  same  effect  even  in  respect  to  pro- 
perty situate  elsewhere,  where  it  is  lawful  to  dispose 
thereof  by  will  ?     There  is  no  such  objection  ;  because 
the  diversity  of  laws  of  that  sort  does  not  affect  the 
immovable  property,  neither  does  it  speak  concerning 
the  same,  but  only  directs  the  act  of  making  a  testa- 
ment ;  which,  when  rightly  executed,  the  law  of  the 
country  does  not  prohibit  that  act  from  being  valid  in 
respect  to  immovable  property,  so  far  as  no  character, 
,  impressed  upon  that  property  by  the  law  of  the  place, 
is  injured  or  diminished.     This  observation  has  a  place 
also  in  contracts.     Thus,  if  certain  things  or  rights  of 
the  soil  of  Friesland  are  sold  to  persons  in  Holland,  in 
a  mode  prohibited  in  Friesland,  though  valid,  wh5re 
the  sale  takes  place,  the  things  are  understood  to  be 
well  sold.     The  same  is  true  as  to  things  not,  indeed, 
immovable,  but  annexed  to  the  soil.     But  if  corn  grow- 
ing on  the  soil  of  Friesland  should  be  sold  in  Holland, 
according  to   the  lasts,  as  it  is  called,  the  sale  is  void, 
although  the  law  of  Holland  does  not  speak  on  the 


1  Huberus,  Lib.  1,  tit.  3,  ^  4,  1^  15. 

2  Ante,  ^  426. 


742  CONFLICT    OF  LAWS.  [CH.  X. 

point;  because  it  is  prohibited  in  Frieslancl,  and  it 
adheres  to  the  soil,  and  is  part  thereof.  Sed  an  hoc 
non  ohstat  ei,  quod  antea  diximus,  si  factum  sit  testa?7ientwn 
jure  loci  validum,  id  effectum  habere  etiam  in  bonis  alibi 
sitis,  tibi  de  illis  testari  licet  ?  Non  ohstat ;  cjida  legiim 
diversitas  in  ilia  specie  non  afficit  res  soli,  neque  de  illis 
loquitur,  sed  ordinal  actum  testandi ;  quo  recte  celebrate, 
Lex  Reijjuhl.  non  vetat  ilium  actum  valere  in  immobilibus, 
quatenus  mdlus  character  illis  ijjsis  a  Iccje  loci  impressiis 
Imditur  aut  imminidtur.  Hcec  ohser^vatio  locum  etiam  in 
contractibiis  halet ;  qidhiis  in  Hollandia  venditce  res  soli 
Frisici,  modo  in  Frisia  prohihito,  licet,  uhi  gestus  est,  valido, 
recte  venditce  intelliguntur ;  idernque  in  rehis  non  quiclem 
immohilihiis,  at  solo  cohcerentihus ;  idi  si  frumentum  soli 
Frisici  in  Hollandia  secundum  lastas,  ita  dictas,  sit  vendi- 
tum,  non  valet  venditio,  nee  quidem  in  Hollandia  secundum 
earn  JUS  dicetur,  etsi  tale  frumentum  ihi  non  sit  vendi  pro- 
hibitum;  qida  in  Frisia  interdictum  est;  et  solo  cohceret 
ej usque  pars  est) 

§  444.  Rodenburg  seems  at  first  to  consider,  that 
laws,  which  regulate  the  forms  and  solemnities  of  acts 
touching  property,  are  neither  strictly  personal  laws, 
nor  real  laws  ;  but  a  third  sort.  Suhsequitur  tertium  et 
tdtfmum  genus,  eorum  niminim  statidorum,  qidbus  lex  prce- 
figitur  actid,  qui  a  persona  peragendus,  eundum  actum  vel 
vetando,  vel  certo  etiam  modo  circumscribendo.-  He  after- 
wards proceeds  to  state,  that  the  opinion  commonly 
entertained  by  jurists  is,  that  as  to  such  acts,  ihQ  law 


1  Huberus,  De  Conflict.  Leg.  Lib.  1,  tit.  3,  ^  15.  —  Whether  this  dis- 
tinction is  satisfactory  or  not,  will  be  for  the  learned  reader  to  decide.  See 
post,  ^  476. 

2  Rodenburg,  De  Divers.  Stat.  tit.  2,  ch.  3,  ^  1 ;  2  Boullenois,  Appx. 
p.  19. 


CH.  X.]  REAL    PROPERTY.  743 

of  the  place,  where  the  act  is  done,  is  alone  to  be 
regarded,  although  it  respects  immovable  property.  iSi 
de  solemnibiis  quceratur,  ea  jampridem  in  foro  ac  pidpito 
prcevalidt  opinio^  %d  spedandcc  sint  loci  cvjiisque  leges,  iihi 
actus  conficitur}  Quare  sicuU  ex  more  loci  solemnite,  ordi- 
natiim  fiierit  testamentwn,  valitunim  illud,  idiciinqiie  oportii- 
mt  txecpd?  He  then  remarks,  that  Cujaccius  and  Bur- 
gundns  had  attacked  this  doctrine ;  holding,  that  testa- 
tors are  bound  to  observe  the  forms  and  solemnities  of 
the  res  sitce.  He  distinguishes  cases  of  this  sort  from 
cases  of  contract,  which  bind  only  the  person;  Cvjus 
ossibiis  iibiqiie  inhcEret,  semel  ex  forma  loci  contractce  ohliga- 
tionis,  nexus.  De  re  vero  alibi  consiitxda  disponendi,  ant 
ejus  in  alium  transcribendce  formam  hcec  non  concernunt. 
Realiiim  namqiie  jiirium  eorimive  actuiim,  qidbiis  fit  manci- 
pation aid  dominium  transfertur,  aliam  esse  rationem,  vel 
quotidiana  praxis  edocet,  et  rede  dispidat  Burgundus.  Jus 
in  re,  ut  nascatur,  quod  Juc  ex  causa  testamenti  contingit, 
non  posse  id  proestare  alterius  regionis  consuetudinem,  id 
forma  illd  ac  solemnibiis  circumdaret  alienor mn  fundorum 
alterationes,  adeoque  omnino  jus  diceret  extra  territoiium? 
He  then  proceeds  to  examine  the  reasoning,  upon  which 
the  opinion  is  maintained,  that  the  law  of  the  place  of 
the  making  a  testament  should  govern  as  to  the  forms 
and  solemnities  thereof,  and  not  the  law  rei  sitce.  He 
admits  his  own  view  to  be,  that  a  testament  made  ac- 
cording to  the  forms  and  solemnities  of  the  place  where 
it  is  made,  ought  to  be  held  valid  -,  and  also,  that  a  tes- 
tament, made  in  such  place,  according  to  the  forms  of 
the  law  rei  sitm,  ought  equally  to  be  held  valid.     The 


1  Rodenburg,  De  Divers.  Stat.  tit.  2,  ch.  3,  §  1  ;   2  Boullenois,  Appx. 
p.  19. 

2  Ibid.  3  Ibid. 


744  CONFLICT    OF   LAWS.  [CH.  X. 

former  lie  treats  as  an  indulgence,  founded  in  general 
convenience ;  the  latter,  as  correct  in  point  of  strict 
right.  Ego  poiiiis  idrohiqiie  pro  testamento  respondendum 
diixerim,  quippe  personce  qiialitas  ad  siimmam  rei  nonfacit, 
tiimfactura,  si  Btcdida  ilia,  in  solemnilates  scripta,  persona- 
lia forent,  id  siihditiis  iis  gauderet,  non  gaiideret  exterus : 
sed  contra  constat  ea  mere  realia  esse.  Qidcunqiie  enim 
fucrit,  sive  incola,  sive  exterus,  qui  rem  allenare  intendit,  ne- 
cesse  Jiahet  respicere  ad  solemnitatem  territorii,  cui  bona  sunt 
ohnoxia.  Quare  dicendum  est  decidendi  qucestionis  ratio- 
nem  in  modo  prolatis  positam  esse  :  necessitatis  niminim  ra- 
tioncm,  summumque  favorem,  qid  pro  testamentis  facit,  im- 
petrdsse,  id,  qiiamvis  ilia  mancijyent  ceqiie  atque  alienationes 
inter  vivos,  ideoque  consimiliter  componenda  forent  ad  nor- 
mam  loci,  uU  res  sitce  sunt,  suffecerit  tamen  ordindsse,  secun- 
diim  leges  loci,  ubi  actus  conficitiir.  Proinde  si  qids  eo,  quod 
ad  iestandum  expeditius  sua  causd  comparatum  est,  noluerit 
idi,  quod  ei  forte  promptius  sit  componere  suprema  ad  loci 
leges,  cui  bona  suhjaceant,  quo  minus  testamentum  ejus  vali- 
turum  sit,  non  video :  nidla  enim  Juris  ratio,  aid  wqidtatis 
benignitas  patitiir,  id  quce  salubriter  pro  idilitate  Jiominum 
introducmdur,  ea  nos  duriore  interpretatione  contra  ipsorum 
commodum  producamus  ad  severitatem ;  nee  cum  super- 
addatur  alia  testandi  forma,  adimitur  prior,  quod  novce  so- 
lemnitatis  adjectionem  p)otias  dedisse  DD.  quam  piiorem  ac 
ordinarium  permiddsse  videantur.  JJnde  consequens  est  di- 
cere,  ne  disputem  sine  speciei  appositione,  Amersfurti,  ubi 
coram  trinis  testibus  una  cum  Notario  ultima  conduntur  elo- 
gia,  viribus  subsistere  celebrata,  coram  binis  testibus  supra 
Notarium,  de  bonis  in  Ilollandia,  aut  in  alia  Ptwinciw  nos- 
trw  parte  sitis}     It  is  hardly  possible  to  conceive  a 


1  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  3,  n.  1,  2  ;  2  Boullenois,  Appx. 
p.  21,  22 ;  1  BuuUenois,   p.  414  to  418  ;   Id.  Obs.  21,  p.  422,  423.     See 


CH.  X.] 


REAL   PROPERTY.  745 


stronger  illustration  of  the  difficulty  of  undertaking  to 
build  up  systems  of  jurisprudence  upon  mere  theory 


also  2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  9,  p.  865  to  868. 
—  Mr.  Burge  says  :  "In  selecting  the  law,  by  which  it  is  to  be  deter- 
mined, whether  the  acts  or  instruments  of  alienation  have  been  made  with 
the  necessary  solemnities  to  render  the  alienation  valid,  the  distinction 
must  be  made  between  those  which  are  required  for  the  proof  or  authenti- 
cation of  the  act,  and  those  which  are  required  to  be  observed  as  the  con- 
dition on  which  alone  the  law  either  authorizes  the  alienation,  or  gives  to 
it  an  effect  which  it  withholds  if  they  are  not  observed.  The  former  are 
called  sometimes  solemnia  probantia,  and  the  latter  solemnia  habiiitantia. 
Thus,  with  respect  to  the  former,  if  the  lex  loci  contractus  treats  as  null 
and  void  every  contract,  the  subject-matter  of  which  exceeds  in  value  a 
certain  sum,  if  it  be  not  reduced  to  writing  and  proved  before  notaries,  &c. 
when  the  notarial  proof  is  not  that  which  is  prescribed,  the  contract  will 
be  void  in  whatever  place  it  is  enforced.  So  if  those  solemnities  which  the 
lex  loci  contractus  requires,  have  been  observed,  and  the  contract  accord- 
ing to  that  law  is  valid  and  obligatory,  it  will  be  valid  everywhere  else. 
But  the  latter  proposition  is  subject  to  the  qualification,  that  it  does  not 
affect  immovable  property,  subject  to  a  law  in  the  country  of  its  situs, 
which  annuls  a  contract  because  it  has  not  been  entered  into  with  the 
solemnities  which  it  requires.  If  the  disposition  of  the  law  does  not  annul 
the  contract  on  account  of  its  non-observance  of  the  solemnities  which  are 
prescribed,  but  gives  to  it  a  degree  of  authenticity  or  credit  which  it  will 
want  if  they  are  not  observed,  or  if,  in  other  words,  its  effect  is  either  to 
dispense  with  a  more  formal  proof  of  the  instrument,  if  it  bears  on  it  evi- 
dence of  their  observance,  or  if  in  consequence  of  the  non-observance  it 
attaches  a  presumption  against  the  execution  of  the  instrument,  and  there- 
fore requires  from  the  parties  a  greater  burden  of  proof,  such  solemnities 
are  to  be  classed  amongst  the  proofs  in  the  cause,  which  are  governed 
neither  by  the  lex  loci  contractus,  nor  by  that  of  the  situs,  but  by  that  of 
the  forum.  This  question,  in  the  opinion  of  Paul  Voet,  regards  '  Non 
tam  de  solemnibus,  quam  proband!  efiicacia  ;  qua3  licet  in  uno  loco  suffi- 
ciens,  non  tamen  ubique  locorum  ;  quod  judex  unius  territorii  nequeat 
vires  tribuere  instrumento,  ut  alibi  quid  operetur.'  The  solemnities  v\hich 
are  called  habiiitantia,  and  constitute  the  mode,  by  which  alone  the  aliena- 
tion of  immovable  property  is  permitted  to  be  made,  or  by  which  alone 
that  alienation  can  give  to  the  grantee  or  purchaser  certain  rights,  are 
those  which  are  prescribed  by  the  lex  loci  rei  sitee.  As  that  law  may 
impose  restrictions,  which  may  wholly  or  partially  withhold  the  power  of 
alienating  immovable  property  situated  within  its  territory,  to  which  all 
persons  owning  that  property  are  subject,  it  may  prescribe  the  condiiions 
on  which  such  alienation  may  be  made.  Thus  the  law  of  Scotland  does 
CONFL.  63 


746  CONFLICT    OF   LAWS.  [CH.  X. 

and  private  notions  of  general  convenience.     The  com- 
mon law  has  wisely  adhered  to  the  doctrine,  that  the 


not  permit  a  destination  of  heritage  by  a  testamentary  disposition,  neither 
does  it  permit  certain  deeds  to  be  made  in  lecto.  One  of  the  conditions 
may  be  the  form  or  manner  in  which  it  shall  be  made.  This  solemnitas 
dispositionis  is  tanquam  qusedain  qualitas  rebus  impressa,  and  the  validity 
of  the  alienation  must  depend  on  its  compliance  with  the  prescribed 
solemnity.  Among-st  the  instances  illustrating  the  species  of  solemnities 
prescribed  by  the  lex  loci  rei  sitas,  and  to  which  effect  must  be  given  in  all 
questions  respecting  the  validity  of  the  alienation,  may  be  mentioned  the 
Statute  of  Frauds  in  England.  Unless  there  be  such  an  agreement  in 
writing  as  is  required  by  it,  or  as  is  sanctioned  by  the  judicial  construc- 
tions which  it  has  received,  no  estate  or  interest  in  immovable  property 
situated  in  England  will  pass,  although,  according  to  the  law  of  the  place 
where  the  agreement  was  made,  it  might  be  sufficient  if  it  were  by  parol. 
The  lex  rei  sitce  must  be  invoked  if  the  question  regard  the  insinuation  or 
registration  of  donations  or  other  instruments,  or  the  effects,  which  are 
induced  by  the  neglect  of  it.  Dumoulin  seems  to  treat  it  as  a  solemnity 
which  is  of  the  substance  of  the  contract,  and  to  be  governed  by  the  lex 
loci  rei  sitas.  '  Insinuatio  et  transcriptio  in  regislris  ordinarice  curiae  loci 
semper  omnibus  his  casibus  est  de  forma  et  substantia  ;  quemadmodum 
insinuatio  donationis  apud  magistrum  census  erat  de  substantia,  si  excede- 
bat  quingentos  aureos.'  Boullenois  considers  that  if  the  registration  does 
not  take  place  when  it  is  proscribed  by  the  lex  loci  rei  sitse,  the  alienation 
is  void  :  'Que  si  le  donaieur  est  domicil6e  dans  un  royaume,  et  les  biens 
situes  dans  un  autre,  et  que  ces  deux  endroits  requierent  une  insinuation, 
je  dis  dans  ce  cas  contre  Thesaurus,  que  si  elie  n'est  pas  insinu^e  dans  les 
deux  endroits,  mais  dans  le  seul  domicile,  donatio  insinuatur  virtute  legis 
municipalis,  non  porrigit  effectum  suum  ad  bona  sita  extra  territorium, 
parce  que  si  la  donation  n'est  pas  insinu6e  dans  le  lieu  de  la  situation,  elle 
n'est  pas  revalue  de  la  formalite  reelle  qu'exige  la  loi  de  la  situation.'  " 
Vattel  affirms,  "  that  the  validity  of  a  testament,  as  to  its  form,  can  only 
be  decided  by  the  domestic  judge,  whose  sentence,  delivered  in  form, 
ought  to  be  everywhere  acknowledged."  But  at  the  same  titne  he  admits, 
that  the  validity  of  the  bequests  may  be  disputed,  as  not  being  according 
to  the  lex  rei  sitae.  Vattell,  B.  2,  ch.  7,  ^85;  Id.  ^  HI.  Mr.  Foslix 
seems  to  hold  a  similar  opinion.  He  says  :  "  Une  autre  question  est  celle 
de  savoir,  si  le  contractant  ou  disposant,  qui  se  trouve  en  pays  eiranger, 
pent  se  borner  a  employer  les  formes  prescrites  par  la  loi  du  lieu  de  la 
situation  de  ses  immeubles,  au  lieu  de  suivre  celle  du  lieu  de  la  redaction? 
Nous  tenons  pour  I'affirmative,  par  une  raison  analogue  a  celle  donnee  sur 
la  question  pr6c6dente.  Le  Statut  rt^el  r«!^git  les  immeubles;  c'est  un 
principe  resultant  de  la  nature  des  choses;  la  permission  d'nser  des  formes 


CH.  X.]  REAL   PROPERTY.  747 

title  to  real  property  can  pass  only  in  the  manner,  and 
by  the  forms,  and  to  the  extent  allowed  by  the  local 
law.  It  has  thus  cut  off  innumerable  disputes  and 
given  simplicity,  as  well  as  uniformity,  to  its  operations. 
§  444  a.  John  Voet  maintains,  in  substance,  the  same 
opinion  as  Rodenburg ;  and  insists,  that  it  is  sufficient, 
for  the  validity  of  testaments  of  immovable  property, 
that  the  forms  and  solemnities  thereof  should  be  either 
according  to  the  law  of  the  place  where  the  testament 
is  made,  or  according  to  the  law  of  the  place  rei  sitce. 
His  language  is;  JSfcqiie  minus  de  stcdidis  mixtis,  actus 
cujiisque  solennia  rcspicientibus,  pcrcrehuit,  imiiper  Jiahitis 
de  summo  cujusque  jure  ac  ijotedcde  rcdiociniis,  ad  validi- 
tatem  actus  cujusque  sufficere  adhiUtionem  solennitatum, 
quas  lex  loci,  in  quo  actus  geritur,  prwscripserit  ohservandas  ; 


6tablies  par  la  loi  du  lieu  de  la  redaction  de  I'acte  n'est,  qu'une  exception 
introduite  en  faveur  du  propri6taire,  et  a  laquelle  il  lui  est  loisible  de 
renoncer.  Tel  est  anssi  le  sentiment  de  Rodenburg,  de  Jean  Voet,  et  de 
Vander  Kessel ;  Cocceji  soutient  meme,  que  la  forme  des  actes  enlre  vifs 
ou  testamentaires  est  r6gl6  exclusivement  par  la  loi  de  la  situation  des 
biens.  Fachinee  et  Burgundus  partageaient  cet  avis,  mais  par  rapport 
aux  testaments  seulement.  En  Belgique,  I'^dit  perpetuel  de  1611,  art.  13, 
ordonnait,  qu'en  cas  de  diversite  de  coutume  au  lieu  de  la  residence  du 
testateur  et  au  lieu  de  la  situation  de  ses  biens,  on  suivrait,  par  rapport  a 
la  forme  et  a  la  solemnite,  la  coutume  de  la  situation.  Paul  Voet,  Huber, 
Hert,  Hommel,  et  I'auteur  de  I'ancien  repertoire  de  jurisprudence,  se  pro- 
noncent  pour  la  nullite.  Ce  dernier  invoque  l'autorit6  de  Paul  de  Castres, 
au  passage  rapport6  au  n°  precedent,  et  le  principe,  que  la  loi  lie  tous  les 
individus,  qui  vivent  dans  son  ressort,  ne  fut-ce  que  momentan6ment. 
Nous  renvoyons  a  ce  sujet  aux  observations  presentees  sur  la  question 
precedente.  Mevius  distingue  entre  le  citoyen  faisant  partie  de  la  nation 
dans  le  territoire  de  laquelle  les  biens  sont  situes,  et  entre  I'etranger  ;  il 
n'accorde  qu'au  premier  la  facuU6  de  tester  ou  de  contractor  partout 
d'apr^s  les  formes  prescrites  au  lieu  de  la  situation.  L'auteur  ne  donne 
pas  de  motif  de  cette  distinction,  et  nous  ne  pouvons  la  trouver  fondle." 
Fcelix,  Des  Conflit  des  Lois,  Revue  Strang,  et  Frang.  Tom.  7,  1840,  ^  50, 
p.  359,  360.  See  also  4  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch. 
12,  p.  581  to  p.  587;  Id.  p.  590. 


748  CONFLICT    OF   LAWS.  [CH.  X. 

sic,  et  quod  ita  gestum  fiierit,  sese  2yomgat  ad  hona  moUlia 
et  immobilia  uUcunqiie  sita  aim  in  territoriis,  quorum  leges 
huge  aliiim,  longeqiie  i^leniorem  reqidrunt  solenniwn  inter- 
ventiim ;  quod  ita  placuisse  videtur,  turn,  ne  in  infinitum 
pro]?e  multiplicarentur  et  testamenta  et  contractus,  pro  nu- 
mero  regionum,  diverso  Jure  circa  solennia  utentiiim  ;  atque 
ita  summis  implicarentur  molestiis,  amhagihus,  ac  difficulta- 
tihus ;  quotqiiot  actum,  res  plures  plurihus  in  locis  sitas 
concernentem,  expedire  voluerint :  tum  etiam,  ne  plurima 
hand  fide  gesta  nimis  facile  ac  propre  sine  culpa  gerentis 
conturharentur.  He  afterwards  adds ;  Posito  vcro  hoc 
generali  circa  solenniwn  adhihitionem  jure,  execuiiendum  su- 
perest,  quid  statuendum  sit,  si  quis,  in  loco  aliquo  actum  ge- 
rens,  neglectis  loci  istius  solennihis,  adhihuerit  ea,  cqiice  vel 
domicilii  vel  rei  sitce  statuta  requirunt,  sive  diversa  ilia  sint, 
sive  p)auciora  ?  Mgnsingerus  quidem  et  Michael  Grassus 
actus  ita  gestos  mdlius  fore  momenti  pronunciant,  sive  actum 
gerens  extra  domicilii  locum  servaverit  solennia  domicilii,  sive 
ea,  qucB  requirehantur  in  loco  rei  immoUlis  sitce.  Cum  enim 
aide  dictum  sit,  cdiquem  et  ratione  domicilii,  et  ratione  lono" 
rum  immoUlium,  sulditum  esse  magistrcdihus  locorum,  in 
quibus  vel  domiciUum  fixit,  vel  hona  immobilia  possidet ;  ac 
quisque  magistratus  secundum  jus  siimmum  {dequo  superius 
disp)utatum,  quodque  hie  usum  invenit)  sui  stcdidi  vires  nan 
male  tueatur,  quo  usque  potest,  iniquus  sane  esset  in  sihi  suh- 
jectum  rcdione  domicilii  aut  bonorum,  si  non  respectu  bonorum 
in  suo  territorio  jacentium,  ratam  haberet  uUimam  volunta- 
tem  aid  contractum  ejus,  a  quo  sua  statuta  solenniwn  intuitu 
servanda  videt ;  maxime,  cum  hdc  ratione  defendens  sui 
statuti potestatem  non  conturbet  aut  subvertat  alibi  bene  gesta, 
atque  adeo  nequaquam  altcrius  territorii  magistratibus  idlam 
videripossit  injuriam  facere} 

1  J.  Voet,  ad  Pand.  Lib.  1,  tit.  4,  P^  2,  ^  13,  15,  p.  45,  46  ;  4  Bui^e, 


CH.  X.]  HEAL   PROPERTY.  749 

§  444  h.  Cujaccius  seems  to  liolcl,  that  the  law  of  the 
place  of  the  domicil  of  the  testator  ought  to  be  regarded 
as  to  the  forms  and  solemnities  of  making  wills  and  tes- 
taments, without  reference  to  the  place,  where  the  will 
is  made,  or  the  property  is  situated.  Quwri  hodie  sccpe- 
niimcro  solet,  cujus  regionis  ant  civitatis  leges  morcsve  scr- 
viri  oporteat  in  ordinando  testamento  ;  nam  quot  sunt  civita- 
tcs,  tot  fere  sunt  ordinandi  testamenti  leges  et  mores  ;  et  so- 
leo  dicere, 2')atriam  testatoris  solam  s^ectari  oportere,  &c.  Jus 
igitur  jpatrice  spectatiir,  potius  quam  jus  commune  Fopuli 
Romani,  &e.  Sum  igitur  patrice  et  civitatis  legihus  aut  mo- 
jibus  quisquis  testari  dehet,  d^c.  Denique  non  spectari  locum 
volo,  in  quo  hona  sunt,  scd  patriam  testatoris,  &c.  Et  domi- 
cilii potius  quam  originis  spectari  patriam.  Possit  autem 
qiiis  quo  loco  habet  bona,  ejus  neque  originalis  esse,  neque  in- 
cola}  Nee  ejus  loci  idla  JiabeUtur  ratio  infaciendo  Testa- 
mento. This  might  seem  sufficiently  explicit.  On  an- 
other occasion  he  says;  Intelligimus,  inquam,  in faciendo 
testamento,  privilegium  et  morem  patriae  Testatoris,  spectari 
oportere,  non  situm  hononmi.  Nam  sola  possessio  bonorum 
non  creat  milii  patriam.  Si  p)ossideo  prcedium  in  hac  urbe, 
hwc  urbs  non  est  ideo  mea,  nisi  in  ea  posid  domicilium.  So- 
lam possessionem  nee  civem  facere,  nee  incolam.  Ergo  in 
servandis  solemnihus  testamenti  non  spectabo  situm  bonorum, 
lit  pro  vario  situ  bonorum  etiam  varia  solemnia  observentur^ 
variique  mores  in  exequenda  defuncti  voluntate  ;  sed  spectabo 
tantum  morem  et  privilegium  patrice  testatoris? 


Coram,  on  Col.  and  For.  Law,  Pt.  2,  ch.  12,  p.  590  ;    ante,  ^  410  to 
§443. 

1  Cujacii,  Opera,  Tom.  3,  Observ.  Lib.  14,  cap.  12,  p.  399,  edit.  1758  ; 
4  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  12,  p.  582. 

2  Cujac.  Opera,  Tom.  9,  Comm.  ad  Cod.  Lib.  G,  tit.  23,  p.  709,  edit. 
1768  ;  Bouhier,  Cout.  de  Bourg.  ch.  28,  §  8,  p.  549 ;  1  Boullenois,  Obser. 
21,  p.  423  ;  2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  9,  p.  886 ; 

63* 


750  CONFLICT    OF   LAWS.  [CH.   X. 

§  445.  Thirdly ;  in  relation  to  the  extent  of  the  inte- 
rest to  be  taken  or  transferred.    And,  here,  there  seems  a 


4  Burge,  Comm.  Pt.  2,  ch.  12,  p.  582;  Sand.  Decis.  Frisic.  Lib.  4,  tit.  8, 
Defin.  7,  p.  194.  Vinnius  holds  a  similar  opinion.  He  says  ;  Qiisesitum 
est,  an  testamentum  juxta  alicujus  loci  consuetudinern,  aut  Statutum  fac- 
tum, etiam  vim  habet  extra  ilium  locum  ;  exempli  gratia  testator  ibi  tes- 
tamentum fecit,  ubi  coram  duobus  testibus  et  Notario  testari  licet,  ut  in 
hac  nostra  Batavia ;  qua?ritur,  an  valeat  etiam  in  iis  locis,  ubi  septem  tes- 
tes requiruntur,  uti  in  Frisia,  ubi  sequuntur  jus  civile.  Affirmant  comm. 
DD.  in  L.  1,  C.  C.  de  summ.  Trinit.  et  secundum  banc  Sententiam  stepis- 
sime  judicatum.  Sunt  tamen  qui  in  contrarium  eant,  et  in  qusestione  pro- 
posita  sic  distinguendum  arbitrantur,  ut  circa  res  quidem  mobiles,  et 
nomina,  admittenda  sit  communis  interpret,  sententia.  At  circa  res  soli, 
spectandum  jus  ejus  loci  in  quo  sitse  sunt,  &c.  Mihi  prior  sententia  vide- 
tur  probabilior,  multuraque  referre  utrum  Statutum  disponat  circa  solem- 
nitatem  alicujus  actus,  an  circa  rem,  puta  fundum,  locurave  ;  quae  Statuta 
in  rem  concipiuntur.  Qualia  sunt,  quie  de  successione  ab  intestato  dispo- 
nunt,  rem  ipsam  Laud  dubie  afficiunt,  ut  ubicumque,  sit  ejus  loci  ubi  est, 
legibus  obstringatur.  Idemque  habendum  de  Statutis,  quae  circa  habilita- 
tem  personarum,  dispensando  aliquid,  disponunt.  Gail),  Coras.  Gomes. 
Quae  autum  Statuta  disponunt  circa  actus  solemnitatera  duntaxat,  cum 
neque  rem  afficiant,  neque  personam  actum  celebrantis,  sed  ipsam  solum- 
modo  dispositionem,  quee,  fit  in  loco  Statuti,  vel  consuetudinis,  rationi,  et 
juri  consentaneum  est,  ut  ea  vim  suam  exerant  etiam  ad  bona  alibi  sita; 
quoniam  actuum  solemnia  ad  eorum  spectant  Jurisdictionem,  in  quorum 
territorio  celebrantur  ;  et  alias  contra  ralionem  juris,  testato  decedere  vo- 
lenti, plura  testaraenta  essent  contenda,  aut  quod  absurdum  est,  plurium 
locorum  consuetudines  in  uno  testamento  exquirere  oporteret,  actumque 
unum,  atque  individuum,  qualis  est  testamenli,  secundum  diversa  loca 
adjudicari.  Ubi  contraria  scite  expedit,  et  prudenter  temperat,  novam 
quandam  distinctionem  Fachinei  adde,  qujE  nos,  lib.  2,  Select.  Quest.  C. 
19.  Plane  si  Lex  expresse  testatores  sequi  jubeat  jus  loci,  in  quo  bona 
sita  sunt,  aliud  dicendum  est.  Talis  est  constitutio  Principum  Brabantise, 
emissa  anno  1611,  cujus  meminerunt  Burgundus,  &c.  Vinn.  ad  Inst.  Lib. 
2,  tit.  10,  ^14,  n.5;  1  Boullenois,  Observ.  21,  p.  426,  427.  Gaill  is 
equally  explicit.  Alibi  statutum  est,  ut  testamentum  coram  Notario  et 
duobus  testibus  factum  valeat.  Qujpsitum,  utrum  tale  testamentum  ubi- 
que  vires  habeat,  etiam  extra  territorium  statuentium,  ubi  forie  major 
solennitas  requiritur,  vel  jus  Civile  observantur.  Conclusum  quod  sic  ; 
quia  ex  communi  Doctor,  jopinione,  statutum  disponens  citra  solennitates 
testamenti,  extendit  se  etiam  extra  territorium,  ita  ut  hajres  succedere  pos- 
sit  in  omnibus  bonis",  ubicunque  sitis,  et  in  universum  jus  testatoris  ;  quia 
quoad  solennitates  attenditur  consuetudo  loci,  in  quo  actus  celebratur. 


CH.  X.]  REAL    PROPERTY.  751 

perfect  coincidence  between  the  doctrine  of  the  common 
law,  and  that  maintained  by  foreign  jurists.  It  is  uni- 
versally agreed,  that  the  law  rei  sitce  is  to  prevail  in  re- 
lation to  all  dispositions  of  immovable  property,  and 
the  nature  and  extent  of  the  interest  to  be  alienated. 
If  the  local  law,  therefore,  prescribes,  that  no  person 
shall  dispose,  by  deed  or  by  will,  of  more  than  half,  or 
a  third,  or  a  quarter  of  his  immovable  property ;  or,  that 
he  shall  dispose  only  of  a  life  estate  in  such  property ; 
such  laws  are  of  universal  obligation,  and  no  other  oi^ 
farther  alienation  thereof  can  be  made.^  It  follows  that, 
if  the  local  law  prohibits  the  alienation  of  certain  kinds 
of  immovable  property,  or  takes  from  the  owner  the 
power  of  charging  them  with  liens,  or  with  mortgages, 
that  law  will  exclusively  govern  in  every  such  case. 
D'Aguesseau  fully  assents  to  this  doctrine,  and  says, 
that  no  one  can  be  ignorant,  that,  when  the  question  is, 
what  portion  of  immovable  property  may  be  devised,  it 
is  necessary  invariably  to  follow  the  law  of  the  place, 
where  the  property  is  locally  situate.^ 


Gain,  Pract.  Observ.  Lib.  2,  Observ.  123,  p.  548.  See  Peckius,  De 
Testam.  Conjug.  ch.  28,  n.  9,  p.  620,  who  holds  a  similar  opinion.  Fce- 
lix,  Conflit  des  Lois,  Revue  Strang,  et  Franc.  Tom.  7,  1840,  »^  37,  p.  307 
to  312;  ante,  ^  426  to  428. 

1  1  Boullenois,  Prin.    G6n.    30,   p.  8;  Id.  Observ.    10,  p.  205;  and 

1  Froland,  Mem.   156  ;    Rodenburg,  De  Div.  Stat.   tit.  2,  ch.  2,  ^  1  ; 

2  Boullenois,  App.  p.  14;  post,  ^  479. 

2  D'Aguesseau,  CEuvres,  Tom.  4,  p.  637,  638,  4to.  edit.  —  Mr.  Burge, 
oa  this  subject,  says  ;  "  In  a  former  part  of  this  vv'ork  it  has  been  seen, 
that  the  power  to  alienate  immovable  property  by  contract  was  a  quality 
impressed  on  the  property  ;  that  the  law  from  which  it  was  derived  or  by 
which  it  was  regulated,  was  a  real  law;  and  that  the  existence  of  this 
power  and  the  validity  of  its  exercise  must  be  decided  by  the  law  of  the 
country  in  which  that  property  was  situated.  '  Rebus  fertur  lex,  cum 
certam  iisdem  qualitatem  imprimit,  vel  in  alienado,  v.  g.  ut  ne  bona  avita 
possint  alienari,  vel  in  aquirendo,  v.  g.  ut  dominium  rei  immobilis  vendilae 


752  CONFLICT    OF    LAWS.  [CH.  X. 

§  446.  An  illustration  of  the  doctrine  may  be  bor- 
rowed from  the  English  jurisprudence,  prohibiting  alien- 


non  aliter  acquiratur,  nisi  facta  fuerit  judicialis  regisnatio.'  The  power  of 
making  the  alienation  by  testament  is  no  less  qualitas  rebus  impressa,  than 
that  of  making  the  alienation  by  contract.  When,  therefore,  the  question 
arises,  whether  the  immovable  property  may  be  disposed  of  by  testament, 
recourse  must  be  had  to  the  lex  loci  rei  sitae.  That  law  must  also  decide, 
whether  the  full  and  unlimited  power  of  disposition  is  enjoyed,  or  whether 
it  is  given  under  restriction.  The  validity  of  the  testamentary  disposition 
depends  in  the  latter  case  on  its  conformity  to  that  restriction,  whether 
the  restriction  consist  in  limiting  the  extent  or  description  of  property, 
over  which  the  power  of  disposition  may  be  exercised,  or  the  persons  in 
whose  favor  the  disposition  is  made,  or  in  requiring  that  the  testator  should 
have  survived  a  certain  number  of  days  after  the  execution  of  the  act,  by 
which  the  disposition  was  made.  The  total  or  partial  defect  of  the  will  on 
the  ground,  that  it  did  not  institute  heirs,  or  that  it  omitted  to  name  the 
heirs,  the  disherison  of  the  heirs,  the  grounds  on  which  the  disherison  may 
be  justified  are  essentially  connected  with  the  power  of  disposing  of  im- 
movable property  by  testament,  and  are  therefore  dependent  on  the  law  of 
its  situs.  Many  of  the  restrictions  on  the  power  of  disposing  by  testament 
have  been  considered  by  jurists  expressly  with  reference  to  the  operation 
of  the  law  by  which  they  were  created.  Rodenburg  states  the  rule, 
'  Unde  certissima  usa  ac  observatione  regula  est,  cum  de  rebus  soli  agitur, 
et  diversa  sunt  diversarum  ppssessionum  loca  et  situs,  spectari  semper 
cujusque  loci  leges  ac  jura,  ubi  bona  sita  esse  proponuntur,  sic  ut  de  tali- 
bus  nulla  cujusquum  potestas  sit,  prseter  territorii  leges.'  He  illustrates  it 
by  referring  to  a  statute  which  prohibits  a  disposition  of  allodial  property 
by  testament.  He  considers  such  a  statute  a  real  law,  which  renders 
inoperative  any  testamentary  disposition  of  the  property  in  whatever  place 
the  testament  is  made.  Ferriere  has  stated  this  doctrine  ;  '  Si  je  legue 
un  heritage  propre  situe  en  coutume,  que  en  dtfende  la  disposition,  tel 
legs  est  nul,  et  ne  peut  etre  parfourni  sur  les  biens  situes  en  cette  cou- 
tume, quoi  qu'acquest,  parce  qu'a  regard  des  choses,  dont  on  peut  dis- 
poser par  derniere  volont6,  on  considere  la  coutume  ou  elles  sont  situ6es. 
Celui,  qui  a  son  domicile  en  cette  coutume  peut  instituer  sa  femme  dans 
les  biens,  qu'il  a  dans  le  pais  de  droit  ecrit,  comme  il  aet6  jug6  par  arret 
du  14  Aoust,  175i  rapporte  par  Marion  au  de  ses  plaidoyers,  ce  qui  doit 
etre  sans  diiriculi6.'  A  testament  made  in  a  foreign  country  bequeathing 
heritable  subjects  situated  in  Scotland,  is  not  sustained  in  that  kingdom, 
though  by  the  law  of  the  country  where  the  testament  was  made,  heritage 
might  have  been  settled  by  testament,  because  by  the  law  of  Scotland  no 
heritable  subject  can  be  disposed  of  in  that  form.  On  this  principle  a 
Scot's  personal  bond  taken  to  heirs  and  assignees,  but  '  secluding  execu- 


CH.  X.] 


REAL   PROPERTY.  753 


ations  and  devises  of  real  estate  in  mortmain,  or  for 
charitable  purposes.  If  an  American  citizen,  owning 
lands  in  England,  or  a  Scotchman  owning  lands  in  Eng- 
land, should  alienate,  or  devise  such  lands  in  violation 
of  the  mortmain  acts,  the  instrument^  whether  inter  vivos, 


tors,'  cannot  be  bequeathed  by  a  foreign  testament.  But  in  all  questions 
touching  heritable  subjects  situate  abroad,  the  foreign  testanrient  will  be 
given  effect  to  according  to  the  lex  loci.  Dumoulin  lays  down  the  same 
doctrine  respecting  the  restriction  on  the  testamentary  power  over  biens 
propres.  '  Unde  statutum  loci  inspicietur,  sive  persona  sit  subdita,  sive 
non  ;  itam  si  dicat,  haeredia  proventa  ab  una.  linea,  redeant  ad  haredes 
etiam  remotiores  lineas,  vel  hseredes  linete  succedant  in  hajrediis  ab  ilia 
linea  proventis.  Yel  quod  illi  de  linea  non  possunt  testari  de  illis  intotum, 
vel  nisi  ad  certam  partem.  Hsec  entm  omnia  et  similia  spectant  ad  caput 
slatuti  agentis  in  rem,  et  prscedentem  conclusionem.'  Again;  the 
statute  which  prohibits  a  disposition  to  particular  persons,  or  (which  in- 
volves the  same  consequence)  requires  the  disposition  to  be  made  in  favor 
of  persons,  and  therefore  excludes  all  others,  is  a  real  law.  '  DirectX 
enim  in  rerum  alienationera  acripta  ha3c  lex  realis  omnino  dicenda  est:  nee 
enim  statutum  reale  sit,  an  personale  metiri  oporlet  a  ratione,  qua;  a  con- 
jugali  forsan  qualitate  fuerit  ducta,  sed  abipsa  re,  qua3  in  prohibitione  sta- 
tuti  ceciderit.'  So,  also,  it  has  been  held,  that  the  law  which  requires 
that  the  testator  should  have  survived  the  execution  of  his  testament,  will 
control  the  disposition  of  property,  situated  in  the  country  where  that  law 
prevails,  although  the  testament  is  made,  or  the  testator  domiciled  in  a 
place  where  no  such  law  exists.  If  a  testator,  whose  domicil  and  real  estate 
were  both  in  Normandy,  made  a  will  in  some  other  place,  in  which  he 
had  occasion  to  be  present,  but  where  the  law  did  not  require,  that  the 
testator  should  survive  forty  days,  it  was  held,  that  the  survivorship  was 
essential  to  the  validity  of  the  testament,  so  far  as  it  related  to  the  real 
property  in  Normandy.  If  these  questions  arise  on  the  power  to  dispose 
of  movable  property  by  testament,  the  law  by  which  they  are  decided  is 
that  of  the  domicil  '  pour  les  meubles,  ils  suivent  la  loi  du  domicile,  et  il 
ne  sauroit  jamais  y  avoir  de  choc  entre  diff"6rentes  coutumes,  en  sorte  qu'il 
est  assez  inutile,  quant  aux  meubles,  d'agiter  si  le  statut,  qui  permet  de 
tester,  ou  qui  le  defend,  est  personnel,  ou  s'il  est  r6el.'  The  rule  is 
stated  by  Grolius,  '  Ubi  de  forma  sive  solemnitate  testamenti  agitur, 
respici  locum  conditi  testaraenti ;  ubi  de  persona  antestari  possit,  jus  do- 
micilii ;  ubi  de  rebus  qua;  testamento  relinqui  possunt,  vel  non,  respici 
locum  domicilii  in  mobijibus,  in  rebus  soli  situm  loci.'  4  iJurge,  Comm. 
on  Col.  and  For.  Law,  Pt.  2,  ch.  5,  p.  217  to  220. 


754  CONFLICT   OF   LAWS.  [CH.  X. 

or  testamentary,  would  be  held  void.  And  the  same 
principle  would  apply  to  a  trust  created  in  personal 
property,  to  be  invested  in  lands  in  England  for  the 
like  purposes.^ 

§  447.  Fourthly;  in  relation  to  the  subject-matter,  or 
what  are  to  be  deemed  immovables.  Here  as  we  have 
already  seen,  not  only  lands  and  houses,  but  servitudes 
and  easements,  and  other  charges,  on  lands,  as  mort- 
gages and  rents,  and  trust  estates,  are  deemed  to  be,  in 
the  sense  of  law,  immovables  and  governed  by  the  Lex 
rei  sitce^     But  in  addition  to  these,  which  may  be 


1  Attor.  Gen.  r.  Mill,  3  Russell,    R.  328  ;  S.  C.  2  Dow  &  Clark,  393. 

2  Ante,  ^  382;  Polh.  Cout.  d'OrjSans,  ch.  1,  ^  2.  — P.  Poet  puts  on 
this  point  the  very  sensible  distinction,  that  whether  rents  are  to  be  deemed 
personal,  or  real,  depends  upon  the  question,  whether  they  are  charged  on 
real  property  or  not.  '  Vel  enim  talium  redituum  nomine  sunt  affecta  im- 
mobilia,  id  est,  super  immobilibus  sunt  constituti,  et  immobilibus  erunt 
adscribendi,  adeoq-ue  statutum  loci  spectabitur  ;  vel  immobilia  affecta  non 
sunt  illis  reditibus,  tumque  mobilibus  poteruntaccenseri ;  atque  adeo  statu- 
tum loci  personae,  cujus  illi  sunt  reditus,  inspici  debebit.  P.  Voet,  De 
Stat.  ^  9,  ch.  1,  n.  13,  p.  259,  edit.  1715  ;  Id.  p.  313,  edit.  1661.  And 
he  includes  among  immovables  all  movables,  which  are  intentionally 
annexed  permanently  to  the  freehold.  '  Nisi  tamen  perpetui  usus  gratia 
ex  destinalione  patris-familias  in  uno  loco  manere  debeant;  quo  casu 
immobilibus  comparabuntur.'  Id.  n.  8,  p.  255,  edit.  1715;  Id.  p.  309, 
edit.  1G61.  Rodenburg,  speaking  on  this  point,  says:  De  reditibus  pecu- 
liaris  esto  consideratio.  Et  illi  quidem,  qui  a  re  prtestantur,  vel  cnjus 
nomine  constituta  hypotheca  est,  collocantur  a  Doctoribus  in  immobilium 
numero,  ita  tamen,  si  perpetui  sunt,  secus  si  temporales,  qua  disiinctione 
et  Burgundus  tititur.  Sed  vix  est  ut  non  utrobique  idem  sit  dicendum  : 
cum  enim  ob  id  ipsum  annumerentur  immobilibus,  quod  rei  immobili  per 
hypothecit;  conslitutionem  innitantur,  ponendi  alioquin,  vel  si  perpetui  sint, 
in  mobiliura  classe  ;  nee  hypothecae  iiiimutetur  natura,  temporis  aliqua  ad 
redimendum  pra'stitutione,  nihilque  ad  summam  rei  intersit,  certum  an 
incertum  luitionis  sit  tempus,  consequens  est  dicere  constitutos  ad  tempus 
reditus,  a^que  atque  perpeiuos,  immobilium  nomine  venire,  maxime  cum 
per  hypothecs)  conslitutionem,  res  ad  summam  debiti  habeatur  quasi  alie- 
nata,  quaj  per  solutionem  redimitur,  Rodenburg,  De  Div.  Stat.  tit.  2, 
ch.  2,^2;  2  Boullenois,  Appx.  p.  15.  See,  also,  Burgundus,  Tract  2, 
n.  29,  30,  p.  77,  78,  79. 


CH.  X.] '  REAL   PROPERTY.  755 

deemed  universally  to  partake  of  the  nature  of  immov- 
ables, or  (as  the  common  law  phrase  is)  to  savor  of  the 
realty,  all  other  things,  though  movable  in  their  nature 
which  by  the  local  law  are  deemed  immovables,  are,  in 
like  manner,  governed  by  the  local  law.  For  every  na- 
tion, having  authority  to  prescribe  rules  for  the  disposi- 
tion and  arrangement  of  all  the  property  within  its  own 
territory,  may  impress  upon  it  any  character,  which  it 
shall  choose  -,  and  no  other  nation  can  impugn,  or  vary 
that  character.  So,  that  the  question,  in  all  these  cases, 
is  not  so  much,  what  are,  or  ought  to  be  deemed,  ex  sua 
natiird,  movables,  or  not ;  as  what  are  deemed  so  by 
the  law  of  the  place,  where  they  are  situated.  If  they 
are  there  deemed  part  of  the  land,  or  annexed  (as  the 
common  law  would  say)  to  the  soil  or  freehold,  they 
must  be  so  treated  in  every  place,  in  which  any  contro- 
versy shall  arise  respecting  their  nature  and  character.^ 
In  other  words,  in  order  to  ascertain  what  is  immovable 
or  real  property,  or  not,  we  must  resort  to  the  Lex  loci 
rei? 

§  448.  Hitherto  we  have  spoken  of  alienations  and 
acquisitions  made  by  the  acts  of  the  parties  themselves. 
The  question  next  arises,  whether  the  same  principles 
apply  to  estates  and  rights  acquired  by  operation  of  law. 
It  may  be  affirmed,  without  hesitation,  that,  independent 
of  any  contract,  express  or  implied,^  no  estate  can  be 
acquired  by  operation  of  law  in  any  other  manner,  or 
to  any  other  extent,  or'  by  any  other  means,  than  those 
prescribed  by  the  Lex  reisitce.  Thus  no  estate  in  dowry, 
or  tenancy  by  the  curtesy,  or  inheritable  estate,  or  in- 


1  See  Ersk.  Institutes,  B.  3,  tit.  9,  ^  4  ;  ante,  ^  382. 

2  Chapman  v.  Robertson,  6  Paige,  R.  630. 

3  Sec  Livermore,  Diss.  §  88,  89,  p.  72,  73. 


756  CONFLICT    OF   LAWS.  [CH.  X. 

terest  in  immovable  property,  can  be  acquired,  except 
by  such  persons,  and  under  such  circumstances,  as  the 
local  law  prescribes.  Thus,  if  the  law  of  a  state,  where 
a  man  is  domiciled  at  his  death,  should  confer  a  title 
of  dower  on  his  wife,  though  she  were  an  alien,  that 
would  not  prevail  in  any  other  state,  where  an  alien 
is  not  dowable,  and  where  the  intestate  owned  real 
estate. 

§  449.  Many  questions  upon  this  subject  have  arisen 
in  the  course  of  the  discussions  upon  the  matrimonial 
rights,  conferred  by  the  Lex  domicilii  over  immovable 
property,  situate  in  foreign  countries.  In  the  different 
Italian  States,  and  formerly  in  some  of  the  provinces  of 
France,  which  were  governed  by  the  Roman  Law,  there 
existed  various  regulations  with  regard  to  dowry  or 
dotal  property,  lucrum  dotis.  By  the  laws  and  customs 
of  some  places,  the  husband  gained  by  survivorship 
the  whole  of  the  dotal  effects ;  by  others  a  third,  by 
others  a  fourth,  and  by  others  nothing.^  One  of  the 
questions,  which  has  been  most  elaborately  discussed 
among  foreign  jurists,  is,  whether,  in  such  a  case,  the 
law  of  the  matrimonial  domicil  ought  to  govern  the 
rights  of  the  parties,  as  to  immovable  property  in  fo- 
reign countries,  as  it  does  in  the  matrimonial  domicil.^ 
It  seems  agreed  on  all  sides,  that,  where  there  is  in 
the  country  m  sitce  a  prohibitory  law  against  any 
such  dotal  rights,  and  against  any  contract  to  create 
them,  the  law  of  the  matrimonial  domicil  cannot  prevail, 
if  a  different  rule  exists  there.^     But  the  question  has 


1  Livermore,  Diss.  ^  86,  p.  71  ;  1  Domat,  B.  1,  tit.  9,  §  1  ;  Code  Civil 
of  France,  art.  1540  to  art.  1573  ;  2  Boullenois,  89,  90. 

2  1  Boullenois,  Observ.  29,  p.  732  to  p.  818. 

3  Livermore,  Diss.  ^  85  to  91,  p.  71  to  75  ;  2  Boullenois,  89,  90,  91, 


en.  X.]  REAL   PROPERTY.  757 

been  made,  whether  in  the  absence  of  any  such  prohi- 
bitory law,  or  any  express  contract,  the  law  of  the  ma- 
trimonial domicil  ought  not  to  prevail,  so  as  to  give  the 
same  dotal  rights  in  every  other  place.^ 

§  450.  Baldus  held,  that,  in  such  cases,  the  law  or 
custom  of  the  matrimonial  domicil  ought  to  govern,  as 
to  property  everywhere.  Consiietiidines  et  statuta,  (said 
he)  vigentia  in  domicilio  mariti,  non  euro,  uU  res  sint  post- 
ice,  quca  in  dotcm  datce  sunt.^  Dumoulin  asserted  the 
same  doctrine,  upon  his  favorite  theory,  that  in  all  cases 
the  law  of  the  matrimonial  domicil  constituted  a  tacit 
contract  between  the  parties.^  There  are  many  jurists 
who  maintain  the  same  opinion. 

§  451.  Boullenois,  as  we  have  seen,°  does  not  admit  the 
existence  of  any  such  tacit  contracts,  as  Dumoulin  con- 


92  ;  ante,   ^  176  to    180,    184,    188  ;  P.   Voet,  de  Stat.   §  4,   ch.  3,  ^  9, 
p.  134,  135,  edit.  1715  ;  1  Froland,  Mem.  63,  63,  64. 

1  Even  Paul  Voet,  who  is  a  strong  advocate  for  the  reality  of  statutes, 
admits,  that  cases  of  express  contract  may  govern,  as  to  property  locally 
situate  in  a  foreign  country.  '  Si  statuto  in  uno  territorio  contractus  ac- 
cesserit,  sen  partium  conventio,  etiam  si  in  rem  si|*onceptum,  sese  exten- 
dit  ad  bona  extra  jurisdictlonem  statuentium  sita  ;^Bn  ut  afficiat  immediate 
ipsa  bona,  quam  ipsam  personam,  quoad  ilia.'  P.  Voet,  De  Stat,  ^  4,  ch. 
2,  ^  15,  p.  127,  edit.  1715. 

2  Livermore,  Diss.  §  87,  p.  71,  72  ;   1  Froland,  ]M6m.  62. 

3  Livermore,  Diss.  §  87,  p.  73,  74  ;  1  Froland,  M6m.  61,  62,  63. — 
Dumoulin,  in  treating  of  the  question,  what  law  ought  to  prevail  in  fixing 
the  rights  of  the  husband,  in  regard  to  the  dotal  effects  of  his  wife,  in  case 
of  a  change  of  domicil  before  the  dissolution  of  the  marriage,  ultimately 
decides  in  favor  of  the  law  of  the  matrimonial  domicil.  His  language  is: 
'  Hinc  infertur  ad  quixjstionem  quotidianam  de  contractu  dotis  et  matri- 
monii, qui  censetur  fieri,  non  in  loco,  in  quo  contrahitur,  sed  in  loco  domi- 
cilii viri  ;  et  intelligitur,  non  de  domicilio  originis,  sed  de  domicilio  habi- 
tationis  ipsius  viri,  de  quo  nemo  dubitat,  sed  omnes  consentiunt.'  Molin. 
Oper.  Tom.  3,  edit.  1681,  Comm.  ad  Cod.  Lib.  1,  tit.  1,  1.  1,  Conclus.  de 
Statut.  p.  555  ;   1  Froland,  M^m.  61  ;  Id.  62  ;  ante,  ^  147. 

4  Ante,  ^  145  to  156. 

5  Ante,  ^  155  ;  1  Boullenois,  Observ.  29,  p.  737  to  741. 
CONFL.  64 


758  CONFLICT    OF   LAWS.  [CH.  X. 

tends  for ;  but  he  deems  all  laws  real,  which  respect 
property,  making,  however,  a  distinction  in  cases  of 
laws,  which  respect  the  rights  of  married  persons  in 
each  other's  property,  which  he  treats  as  laws  respect- 
ing the  state  or  condition  of  the  person.^  But  he  con- 
tends, that,  even  if  there  be  such  a  tacit  contract,  it 
does  not  render  the  laws  of  the  place  in  regard  to 
dowry  personal ;  for,  if  that  were  so  (he  adds,)  then  the 
dowry  of  persons  contracting  at  Paris  would  be  the 
same  in  all  other  provinces  in  the  realm  as  it  is  in  Paris, 
which  no  one  has  ever  yet  contended  for.  Rodenburg 
seems  to  hold,  that,  where  there  is  no  matrimonial  con- 
tract to  govern  the  case,  the  law  of  the  situs  is  to  go- 
vern in  respect  to  dowry,  approving  the  doctrine  of 
D'Argentre  and  Burgundus  on  this  point.^  D'Argentre 
says ;  Cum  ccmtiim  est  virum,  iixore  prcemortiia,  dotem,  do- 
tisve  iiartem  lucrari ;  cvjus  loci  statutum  spectamtis,  viri, 
an  uxoris,  quod  olim  fuit,  an  quod  nunc  est  ?  Nos  rerwn 
liicrandanim  sitmn  spectandiim  dicimiis  ;  et  quid  ea  de  re  sta- 
tuta  singularia  permittant,  quid  abmicmt  respiciendum^  Bur- 
gundus boldly  asserts  the  opinion,  that  the  law  rei  sitce 
must  govern  in  ^kguch  cases  as  to  immovable  property.^ 
Nam  si  dotalitium  rei  immohilis  in  controvcrsiam  veniat,  ea 
miiiquitus  ohtinent  sententia,  id  ad  locum  situs  respicere 
pporteat ;  quce  cum  usque  ad  nostra  tempora,  apud  omnes, 
qui  moribus  regimtur,  inviolaUlis  duret,  non  est  committen- 


1  Ante,  ^  155  ;  1  Boullenois,  Observ.  5,  p.  121  ;  Id.  Observ.  29,  p.  737, 
738. 

2  1  Boullenois,  Observ.   5,  p.    121  ;    2  Boullenois,   p.  88  to  92.     See 
ante,  §  155. 

3  Rodenburg,  De  Divers.  Statut.  Pt.  2,  tit.  2,  ch.  4,  <^  5  ;  2  Boullenois, 
Appx.  p.  67. 

"*  D'Argent.  ad  Briton.  Leg.  Des  Donations,   art.   218,  gloss.  6,  n.  46, 
Tom.  1,  p.  664  ;  Liverm.  Dissert.  §  92  to  i^*  99,  p.  75  to  78. 
^  1  Boullenois,  Observ.  5,  p.  121. 


CH.  X.]  KEAL   PROPERTY.  759 

diun,  id  illam  diibiam  faciam  dcfcnsionis  soUcitiidine}  Many 
jurists  concur  with  them  in  opinion.- 

§  452.  Similar  questions  have  arisen  in  relation  to  the 
rights  of  community,  and  of  mutual  donations  between 
husband  and  wife,  whether  they  extended  to  immovable 
property  situate  elsewhere  than  in  the  matrimonial  do- 
micil,  or  not ;  and  the  general  result  of  the  reasoning 
among  foreign  jurists  turns  very  much  upon  the  same 
coDsiderations,  which  have  been  mentioned  in  relation 
to  dowry.  But  this  subject  has  been  already  discussed 
in  another  place,  and  it  need  not  be  here  again  exa- 
mined.^ 

.  §  453.  Similar  questions  have  also  arisen  in  consider- 
ing the  effect  of  mutual  donations  by  married  couples, 
when  they  are  admitted  by  the  law  of  the  matrimonial 
domicil,  but  are  unknown  to,  or  prohibited  by,  the  law 
of  the  place  rei  sitce}  But  they  proceed  upon  the  same 
general  principles.^     Cochin  says,  that  it  is  not  the  law 


1  Burgundus,  Tract.  2,  n.  10,  p.  63,  64,  Liverm.  Diss.  ^  104  to  ^  114, 
p.  80  to  87. 

2  Ante,  ^  142,  148,  152,  153,  167,  168;  1  Froland,  Mem.  66,  67,  156; 
Id.  316  to  323,  328,  341;  2  Froland,  M6m.  816.  —  Froland  expresses 
himself  in  the  following  terms.  'La  premiere  (K^gle,)  que  le  statut  reel 
ne  sort  point  de  son  territoire.  Et  dela.  vient  que  dans  le  cas,  ou  il  s'agit 
de  successions,  de  la  maniere  de  les  partager,  de  la  quotit6  des  biens,  dont 
il  pent  disposer  entre  vifs  ou  par  testament,  d'ali6nation  d'immeubles,  de 
douaire  de  femme  ou  d'enfans,  de  legitime,  retrait  lignager,  f6odal  ou  con- 
ventionnel,  de  droit  de  puissance  paternelle,  de  droit  de  viduite,  et  autres 
choses  semblables,  il  faut  s'attacher  aux  coutumes  des  lieux,  ou  les  fonds 
sonl  silu^s.'     1  Froland,  M6m.  156  ;  Id.  49,  GO  to  81. 

3  See  ante,  ^  143  to  158,  ^  160  to  170,  174,  175,  176,  177;  1  Froland, 
M6m.  66,  67,  68,  69;  Id.  177,  Pt.  2,  ch.  1,  per  tot.  ;  Cochin,  CEuvres, 
Tom.  5,  p.  80,  4to.  edit.  ;  Merlin,  Repertoire,  Testament,  ^  1,  n.  5,  art. 
1,  p,  309,  310.  We  have  already  seen  Boullenois's  view  of  this  subject, 
ante,  ^  155.     See,  also,  ante,  ^  451. 

4  Ante,  ^  143  to  ^  159. 

5  Liverm.  Diss.  ^  181,  182,  p.  114,  115  ;    1  Voet,  ad  Pand.  Lib.  1,  tit. 


760  CONFLICT    OF   LAWS.  [CH.  X. 

of  the  place,  -where  an  act  is  done,  which  determines  its 
effect.  If  (says  he)  property  is  situate  in  a  place 
whose  laws  prohibit  donations  inter  vivos,  or  reduce  them 
to  a  particular  portion,  no  one  supposes  the  donation  to 
be  less  a  nullity,  or  less  subject  to  reduction,  because 
the  act  is  done  in  a  place,  where  no  such  prohibition 
exists.' 

§  454.  The  doctrine  of  the  common  law  seems  uni- 
formly to  be,  that  in  all  cases  of  this  sort,  touching 
rights  in  immovable  property,  the  law  of  the  place  rci 
sitce  is  to  govern.^  Hence,  if  persons,  who  are  married 
in  Louisiana,  where  the  law  of  community  exists,  own 
immovable  property  in  Massachusetts,  where  such  com- 
munity is  unknown  ;  upon  the  death  of  the  husband,  the 
wife  would  take  her  dower  only  in  the  immovable  pro- 
perty of  her  husband,  and  the  husband,  upon  the  death 
of  the  wife,  would  take,  as  tenant  by  the  curtesy  only, 
in  the  immovable  property  of  his  wife. 

§  455.  Another  class  of  cases,  illustrating  this  subject, 
may  be  derived  from  the  known  rights  of  fathers  over 
the  property  of  their  children  according  to  the  pro- 
visions of  the  Roman  law,  and  the  customary  law  of 
countries,  deriving  their  jurisprudence  from  the  Roman 
law.=^  By  the  ancient  Homan  law  all  the  sons  were  in 
subjection  to  the  authority  of  the  father,  until  they 
were  emancipated  by  the  father,  or  by  some  other  mode 
known  to  that  law.     During  such  subjection  they  were 


4,  n.  3,  p.  39  ;  2  Froland,  Mem.  ch.  18,  p.  810,  &c.,  ch.  19,  p.  901  ;  Ro- 
denburg,  De  Div.  Stat.  tit.  2,  ch.  5 ;  2  Boullenois,  Appx.  p.  33,  31  ; 
1  Boullenois,  G60,  661,  663  ;  Id.  Observ.  29,  p.  767  ;  2  Boullenois,  Ob- 
serv.  44,  p.  430,  431,  432;  ante,  §  143  to  159. 

1  Cochin,  QEuvres,  Tom.  5,  p.  697,  4to.  edit. 

2  Ante,  ^  157,  158,  159,  174  to  179,  186,  187. 

3  Ante,  ^  139. 


OH.  X.]  REAL   PROPERTY.  761 

incapable  of  acquiring  any  property  for  themselves  by 
succession,  or  donation,  or  purchase,  or  otherwise ;  and 
whatever  they  thus  acquired  belonged  of  right  to  their 
fother,  saving  only  what  was  called  the  son's  pccuUum, 
which  consisted  of  property  acquired  by  his  service  in 
the  army,  or  by  his  skill  at  the  bar,  or  in  the  exercise 
of  some  public  employment.^  This  sort  of  property 
was,  therefore,  known  by  the  name  o? pecidium  castrense, 
when  it  was  acquired  in  war,  and  of  jjeculium  quasi  cas- 
trense  when  it  was  acquired  in  any  other  manner.^  In 
the  time  of  Justinian  the  law  was  altered,  and  the 
ffither  was  no  longer  entitled  to  the  property  acquired 
by  his  unemancipated  son  ;  but  he  was  entitled  to  the 
usufruct  or  profits  thereof  during  his  life.  The  rule,  thus 
modified,  has  found  its  way  sometimes  with,  and  some- 
times without  modifications,  into  the  jurisprudence  of 
many  provinces  and  states  of  continental  Europe.'^ 

§  456.  Under  this  aspect  of  the  law  with  regard  to 
the  paternal  power,  the  question  has  often  been  dis- 
cussed among  foreign  jurists,  whether  the  laws  respect- 
ing the  paternal  power,  are  personal  or  real ;  or,  in  other 
words,  whether  the  rights  of  the  father,  allowed  and 
secured  by  the  law  of  the  place  of  his  domicil,  extend 
to  the  immovable  property  of  his  sons,  situate  in  other 


1  1  Domat,  Civ.  Law,  Prelim.  B.  2,  tit.  2,  §  2,  p.  24,  note ;  Id.  B.  2, 
lit.  2,  ^  2,  p.  667  to  669,  670,  n.  1,  2,  3  ;  Bouhier,  Cout.  de  Bourg.  ch. 
16,  ^  8  to  12,  p.  295  ;  1  Brown,  Civ.  Law,  p.  122,  123;  2Froland,  Mem. 
806  to  813  ;  2  Henrys,  CEuvres,  par  Bretonnier,  Lib.  4,  Quest.  127, 
p.  772,  &c.,  717  ;  Merlin,  Repertoire,  Puissance  Paternelle,  ^  7, 
p.  142. 

2  1  Domat,  B.  2,  §  2,  p.  668. 

3  1  Domat,  B.  2,  §  2,  p.  668;  Civil  Code  of  France,  art.  384  to  387  ; 
1  Froland,  Mem.  69  ;  2  Froland,  M6m.  ch.  17,  p.  789  ;  Bouhier,  Cout. 
de  Bourg.  ch.  16,  p.  294. 

64* 


762  CONFLICT    OF   LAWS,  [CH.  X. 

countries,  whose  jurisprudence  confers  no  such  paternal 
rights.^ 

§  457.  Bretonnier  holds  the  doctrine,  that  all  laws 
respecting  the  paternal  power  are  personal,  and  con- 
sequently have  effect  upon  all  real  property  of  their 
children,  wherever  it  is  situate,  and  especially  as  to  the 
profits  and  usufruct  of  it ;  because  the  latter  partake  of 
the  nature  of  movables.  After  stating  the  question, 
whether  fathers,  domiciled  in  a  country  using  the 
Roman  law  (dans  le  imyB  de  Droit  Ecrit,)  whose  sons 
have  real  property  in  another  country,  having  a  different 
customary  law,  are  entitled  to  the  profits  of  the  latter, 
that  is  to  say,  whether  the  paternal  power  extends  every 
where,  he  proceeds  to  say ;  Cette  question  ne  me  semble 
pas  susceptible  d'tine  grande  difficulte ;  parceqiie  la  piiiis- 
sance  paternelle  est  iin  droit  personnel,  et  par  consequence  il 
nc  pent  elre  home  par  aucun  territoire  ;  car  c' est  une  maxime 
certaine  menie  dans  les  pays  de  coutume,  que  les  statuts  per- 
sonnels sont  imiversels,  et  produisent  lew  effet  partout. 
Uailleurs,  les  fruits  sont  des  clioses  moUUaires.  Or,  constat 
inter  omnes,  que  les  meiibles  suivent  les  jyersonnes,  et  se  re- 
glent  suivant  la  coutume  du  domicile} 

§  458.  Hertius  seems  to  hold  a  like  doctrine,  as  to 
the  personality  of  such  laws;  and  puts  a  question, 
whether  a  daughter,  who  is  emancipated  by  marriage, 
may  afterwards  make  a  testament  of  property  situate 
elsewhere  ;  and  whether  the  father  would  have  a  right 
to  the  usufruct  of  her  property,  situate  in  a  place 
where  she  would  be  deemed  unemancipated.  He  an- 
swers ;   Quwsiio  hcBC  duplex  est ;  verum  ex  eodeni  princijno 


1  2  Froland,  M6m.  808,  813  to  829. 

2  Henrys,  CEuvres,  par  Bretonnier,  Tom.  2,  p.  720.    See  2  BouUenois, 
Observ.  32,  p.  46,  47. 


CH.  X.]  REAL   PROPERTY.  763 

decidenda.  Jus  nempe  datum  est  personce,  quod  etiam  "per 
consequentiam  in  hona  alteriiis  civUcdis,  licet  immoUUa, 
operatur}  Yet  Ilertius,  in  another  place,  holds,  that  an 
unemancipated  son,  [fdius-familias)  who  by  the  law  of  his 
domicil  may  make  a  testament,  cannot  make  a  testament 
of  property  situate  in  a  foreign  country.  JSfam  siatutiim 
est  ill  rem  concep)tum,  et  conditio  filH-familice  non  est  in  dis- 
positione?  Him  juxta  rcgidam  Puduensis  fdlus-familias  de 
bonis  cdiM  sitis  testari  non  poterit?  The  ground  of  this  opi- 
nion probably  is,  that  the  general  incapacity  is  admitted 
to  exist  by  the  law  of  the  domicil,  and  the  special  excep- 
tion is  local  and  real.^  In  this  opinion  Hertius  admits, 
that  he  differs  from  Huberus,  whom  he  asserts  to  hold 
the  opinion,  that  if  a  Batavian,  who  is  an  unemancipated 
son,  but  has  authority  to  make  a  testament  in  Holland, 
makes  a  testament  in  Holland  of  immovable  property 
situate  in  Friesland,  that  testament  will  be  valid  in 
Friesland,  although  in  Friesland  the  son,  however  rich 
and  of  whatever  age,  cannot  make  any  testament  of  his 
property.^ 

§  459.  Bouhier  maintains  with  earnestness  and  ability, 
that  the  paternal  power  is  altogether  personal,  and  that 
it  extends  to  the  immovable  property  of  the  unemanci- 
pated child,  situate  in  a  foreign  country,  where  the  like 
law,  as  to  the  paternal  authority,  does  not  exist.*^     And 


1  1  Hertii  Opera,  De  Collis.  Leg.  ^  4,  n.  17,  p.  130,  edit.  1737  ;  Id. 
p.  185,  edit.  1716. 

2  1  Hertii  Opera,  De  Collis.  Leg.  §  4,  n.  22,  p.  133,  edit.  1737  ;    Id. 
p.  188,  edit.  171G. 

3  Ibid. 

4  Pilerlin,  Repertoire,  Testament,  §  1,  n.  5,  art.  1,  p.  310. 

5  Hertii   Opera,   De   Collis.  Leg.   §  4,  n.  22,  p.  133,  edit.  1737  ;  Id. 
p.  188,  edit.  1716. 

6  Bouhier.  Cout.  dc  Bourg.  eh.  21,  ^  37  to  87,  p.  468  to  475. 


764  CONFLICT    OF   LAWS.  [CH.  X. 

he  is  supported  by  the  opinion  of  Le  Brun,  D'Argentre, 
and  others.^ 

§  460.  On  the  other  hand,  Froland  maintains,  that 
the  paternal  power  in  regard  to  the  immovable  property 
of  a  child  is  purely  real.  Ce  stcdiit  est  constamment  reel; 
il  ne  ietend  imnt  siir  les  liens  situes  dans  une  coidunie,  qui 
rH a  pas  disposition  par eille?  Boullenois,  while  he  admits, 
that  the  laws,  which  give  the  paternal  power,  are  per- 
sonal, so  flxr  as  they  respect  the  state  or  condition  of 
the  parties,  contends,  at  the  same  time,  that,  so  far  as 
those  laws  gave  rights  over  immovable  property,  they 
are  real,  and  are  to  be  governed  by  the  law  of  the  place, 
where  the  property  is  situate.^  And  he  proceeds  to 
vindicate  his  opinion  in  a  most  elaborate  manner.'' 

§  461.  D'Aguesseau  says  ;  "  That,  which  characterizes 
a  real  statute,  and  distinguishes  it  essentially  from  a 
personal  statute,  is  not,  that  it  relates  to  certain  per- 
sonal qualities,  or  to  certain  personal  circumstances,  or 
to  certain  personal  events ;  otherwise  we  should  be  com- 
pelled to  say,  that  all  laws,  which  concern  the  paternal 
power,  the  right  of  guardianship,  the  right  of  widow- 
hood {le  droit  de  viduite,)  and  the  prohibition  of  donations 
between  married  persons,  are  all  personal  laws.  And 
accordingly  it  is  beyond  doubt,  that  in  our  jurisprudence 
all  these  laws  are  real,  which  are  to  be  governed,  not 


1  Bouhier,  Cout.  de  Bourg.  ch.  24,  i^  41,  p.  468  ;  Le  Biun,  De  la  Com- 
munaul6,  Lib.  1.  ch.  5,  n.  8  ;  D'Argent.  De  Brilon.  Leg.  Des  Dona- 
tions, art.  218,  Gloss.  6,  n.  7,  Tom.  1,  p.  648. 

2  1  Froland,  M6m.  69  ;  Id.  39,  60,  156  ;  2  Froland,  M6m.  ch.  17, 
p.  789  to  819. 

3  1  Boullenois,  Observ.  4,  p.  68  ;  2  Boullenois,  Observ.  32,  p.  30  to  33 ; 
Id.  p.  39  to  47  ;  Boullenois,  Quest.  Mixtes,  Quest.  20,  p.  406. 

4  Ibid. 


CH.  X.]  REAL   PROPERTY.  765 

according  to  the  law  of  the  doraicil,  but  according  to 
that  of  the  phice,  where  the  property  is  situate." 

§  462.  Merlin  has  examined  the  same  subject  in  a 
formal  discussion  ;  and  he  endeavors  to  hold  a  middle 
course  between  the  opinions  of  Bouhier  and  Boullenois, 
agreeing  with  the  latter,  that  the  usufruct  arising  under 
the  paternal  power  is  a  real  right,  and  governed  by  the 
Lex  rei  sitcc  and  at  the  same  time,  holding  with  Bouhier, 
that  the  father  cannot  possess  the  right,  unless  by  the 
law  of  the  place  of  his  domicil,  the  paternal  power  is 
recognized.  He  then  lays  down  three  principles,  which 
he  supposes  will  remove  all  the  difficulties  upon  this 
thorny  subject.  (1.)  The  law,  which  subjects  the  son  to 
the  power  of  his  father,  has  no  need  of  the  aid  (minis- 
iare)  of  man  for  its  execution ;  and  it  is  therefore  per- 
sonal from  the  very  nature  of  its  object.  (2.)  The  law, 
which  declares  an  unemancipated  son  (iinjils  de  famille) 
incapable  of  alienating  his  immovable  property  without 
the  authority  of  his  father,  is  personal,  although  its  ob- 
ject is  real ;  because  it  determines  the  state  of  the  per- 
son in  regard  to  what  he  can,  and  cannot  do.  (3.)  The 
law,  which  gives  to  a  fither  the  usufruct  of  the  property 
of  his  son,  ought  to  be  real ;  because  its  object  is  real, 
and  it  makes  no  regulation  concerning  the  capacity  or 
incapacity  of  the  unemancipated  son  to  do  any  thing.^ 

1  D'Aguesseau,  (Euvres,  Tom.  4,  p.  660,  4to.  edit. 

2  Merlin,  Piepertoire,.Puissance  Paternelle,  ^  7,  p.  142, 144,  edit.  1827.  — 
The  reasoning  of  ]\Ierlin  on  this  subject  is  marked  with  uncommon 
clearness  and  force  of  statement ;  and  I  have  therefore  thought,  that  an 
extract  from  it  might  not  be  unacceptable  to  the  reader.  "  Or,  que  trou- 
vons  nous  dans  la  puissance  paternelle'?  Trois  choses.  Premiciement, 
ellc  determine  I'etat  des  enfans  ;  et  ;i  cet  (^gard,  elle  forme  un  statut  per- 
sonnel, qui  suit  les  enfans  partout.  Ainsi,  une  mere,  domiciIi6e  en  Hai- 
nault,  conserve  sous  sa  puissance  les  enfans,  qu'elle  a  eu  dans  celte  pro- 
vince, lors  meme  que  le  hasard  ou  certaines  circonstances  les  ont  fait 
passer  dans  une  autre  coutume,  qui  n'accorde  pas  les  memes  droits  aux 


766  CONFLICT    OF   LAWS.  [CH.    X. 

In  another  place  he  holds  that  a  law,  which  prohibits 
an  unemancipated  son  to  make  a  testament,  is  personal ; 

femmes  qu'aux  hommes  snr  la  personne  de  leurs  enfans.  En  second  lieu, 
la  puissance  paternelle  imprime  dans  les  enfans,  qui  y  sont  assujetis,  una  in- 
capacity de  faire  certains  actes  :  comme  cetteincapaciieest  la  suite  deleur 
6tat,  elle  les  suit  6galement  partout  et  influe  sur  tons  leurs  biens,  quelle  qu'en 
soit  la  situation.  Ainsi,  un  fils  de  famille,  ne  dans  une  coutume,  ou  il  ne 
pent  pas  contracter  sans  l'autorit6  de  son  pere,  ne  peut  vendre  de  lui-meme 
les  biens,  qu'il  possede  dans  une  autre  coutume,  qui  n'admet  pas  la  puis- 
sance paternelle  ;  et  reciproquement  un  fils  de  famille  domicilie  dans  une  cou- 
tume, qui  n'admet  pas  la  puissance  paternelle,  peut,  sans  I'autorisation  de 
son  pere,  aligner  les  biens  qu'il  possede  dans  les  pays  de  droit  6crit.  Par 
la  meme  raison,  un  fils  n6  a  Senlis,  ou  la  coutume  proscrit  formellement 
toute  puissance  paternelle,  quoique  nourri  et  entretenu  par  son  pere,  peut 
acquerir  pour  lui-m6me  en  Hainault  et  dans  les  pays  de  droit  ecrit.  Et 
r6ciproqueraent,  un  fils  de  famille,  n6  en  Hainault,  ou  dans  un  pays  de  droit 
6crit,  ne  peut  s'approprier  les  biens,  qu'il  acquierit  dans  la  coutume  de  Sen- 
lis, lorsque  ses  acquisitions  ne  reunissent  pas  toutes  les  circonstances  re- 
quises,  pour  qu'elles  tombent  dans  le  p6cule  castrense,  quasi-castrense,  ou 
adventice.  Troisiemement,  la  puissance  paternelle  donne  au  pere,  dans 
les  pays  de  droit  6crit  et  dans  quelques  coutumes,  la  jouissance  des  biens 
de  ses  enfans.  Cette  jouissance  est,  a  la  virile,  un  accessoire  de  la  puis- 
sance paternelle  ,  mais  cllc  iic  forme  daus  Ico  ciifans  nl  uapacit^  iii  inca- 
pacity :  le  st'dtut,  qui  la  d^fere,  n'a  pas  besoin,  pour  son  execution,  du 
ministere  de  I'homme  ;  il  agit  seul ;  I'homme  n'a  lien  a  faire.  On  ne 
peut  done  pas  appliquer  ici  les  raisons,  qui  ont  determine  I'espece  de  con- 
cordat tacite,  dont  nous  avons  par]6.  Quel  inconvenience  y  a-t-il  a  res- 
treindre  cette  jouissance  au  territoire  des  lois  ou  coutumes,  qui  I'accor- 
dent?  Quoi !  parcequ'un  pere  jouira  des  biens,  que  ses  enfans  ont  dans 
une  province,  et  qu'il  ne  jouira  pas  de  ceux,  qu'ils  ont  dans  une  autre, 
I'ordre  public  serait  trouble,  le  commerce  serait  d6rang6.  Non.  II  n'y  a 
pas  en  cela  plus  de  trouble  ni  plus  de  confusion,  qu'a  succeder  a  un  defunt 
dans  une  coutume,  et  de  ne  pas  lui  succ»!:der  dans  une  autre.  II  est  done 
constant  que  le  systeme  du  president  Bouhier  ne  peut  pas  se  soutenir,  et 
que  le  statut,  qui  donne  a  un  p^re  I'usufruit  des  biens  des  enfans,  qu'il  a 
sous  sa  puissance,  n'est  pas  personnel.  Mais  est-il  purement  r^el,  comme 
le  pretend  Boullenois,  ou  bien  est-il  personnel  r6el,  c'est-a-dire,  faut-il, 
pour  qu'il  produise  son  efTet,  que  le  pere  soit  domicili6  dans  une  coutume, 
qui  ad  met  la  puissance  paternelle?  C'est  la  difficult^,  qui  nous  reste  a 
resoudre.  Le  principal  peut  subsister  sans  les  accessoires  :  mais  les  ac- 
cessoires  ne  peuvent  jamais  subsister  sans  le  principal.  Ce  principe  est 
aussi  clair,  qu'indubitable,  et  il  nous  conduit  droit  a  la  decision  de  notre 
question.  Ainsi,  la  puissance  paternelle  peut  avoir  lieu  sans  I'usufruit 
dont  nous  parlons  ici.     La  coutume  de  Douai  nous  en  fournit  un  example, 


CH.  X.]  REAL   PROPERTY.  767 

but  he  at  the  same  time  asserts,  that  this  will  not  pre- 
vent him  from  making  a  testament  of  movable  property 
in  other  countries,  where  it  is  permitted ;  because  this 
case  is  a  mere  exception  from  his  general  incapacity, 
and  also  falls  within  the  rule,  that,  in  a  conflict  of  real 
and  personal  laws,  the  latter  must  yield.i 

§  4G3.  Without  going  farther  into  an  examination  of 
the  opinions  of  foreign  jurists  upon  this  subject,  it  is 
sufficiently  obvious,  what  difficulties  they  are  compelled 
to  encounter  at  almost  every  step,  in  order  to  carry  into 
effect  their  favorite  system  of  the  division  of  laws  into 
real  and  personal.  The  common  law  has  avoided  all 
these  difficulties  by  a  simple  and  uniform  test.  It  de- 
clares, that  the  law  of  the  situs  shall  exclusively  govern 
in  regard  to  all  rights,  interests,  and  titles,  in  and  to 
immovable  property.  Of  course  it  cuts  down  all  at- 
tempts to  introduce  all  foreign  laws,  whether  they  re- 
spect persons  or  things,  or  give  or  withhold  the  capacity 
to  acquire  or  to  dispose  of  immovable  property.^ 

puisqu'elle  admet  I'une,  chap.  7,  art.  2,  et  qu'elle  exclut  I'autre  par  son 
silence,  comma  I'a  decide  le  parlement  de  FJandre,  par  un  arret  du  27 
Janvier  1739,  rendu  au  rapport  de  M.  de  Casteele  de  La  Briarde,  en  faveur 
du  Slarquis  de  Sin,  centre  les  Sieurs  et  Demoiselles  d'Aoust.  Mais  I'usu- 
fruit  ne  peut  avoir  lieu  sans  la  puissance  paternelle,  dont  il  n'est  I'acces- 
soire.  Un  pere  ne  peut  done  en  jouir,  s'il  n'a  ses  enfans  sous  sa  puis- 
sance, et  par  consequence  s'il  n'est  domicilie  dans  une  coutume,  qui  admet 
la  puissance  paternelle.  Un  p^re,  qui  6manciperait  son  fils  au  moment 
meme  de  sa  naissance,  n'aurait  certainement  aucun  droit  a  I'usufruit  des 
biens,  que  cet  enfant  acquerrait  er:suite,  soit  dans  la  coutume  du  domicile 
qu'il  avait  alors,  soit  dans  toute  autre  province.  Or,  ce  que  ce  pere  est 
suppos6  faire,  la  loi  le  fait  elle-meme  dans  les  coutumes  qui  n'admcttent 
pas  la  puissance  paternelle  ;  elle  emancipe  cet  enfant  des  qu'il  voit  le  jour, 
et  consequemmcnt  elle  soustrait  les  biens,  qu'il  aura  dans  la  suite,  a  Tusu- 
fruitque  son  pere  en  aurait  eu  sans  cetle  emancipation."  Merlin,  Reper- 
toire, Puissance  Paternelle,  §  7,  p.  145,  146,  edit.  1827. 

1  Merlin,  Repertoire,  Testament,  §  1,  n.  5,  art.  1,  p.  310. 

2  See  Brodie  v.  Barry,  2  Ves.  &  Beames,  R.  127 ;  Birthwhistle  v.  Var- 
dill,  7  Clark  &  Finn.  911. 


768  CONFLICT    OF   LAWS.  [CH.  X. 

§  463  a.  This  subject  of  the  nature  and  extent  of  the 
paternal  power  and  rights,  came  recently  under  consi- 
deration in  England,  in  a  case  somewhat  complicated  in 
its  circumstances,  and  touching  personal  estate  only. 
It  may  be  briefly  stated  as  follows.  A  marriage  took 
place  in  Holland  between  the  parties.  At  the  time  of 
the  marriage,  a  marriage  contract  was  there  executed 
in  the  Dutch  form,  making  certain  provisions,  and 
among  other  things,  provision  for  the  distribution  of  the 
wife's  property  in  the  event  of  her  husband  surviving 
her.  They  afterwards  removed  to  and  became  domiciled 
in  England,  and  had  children  born  there.  The  wife 
died ;  and  by  her  death  the  children  became  entitled, 
under  a  compromise  in  Holland,  to  one  fourth  of  cer- 
tain property  of  the  wife  in  the  public  funds.  By  the 
French  Code,  which  is  the  law  of  Holland  also,  when 
children  are  under  the  age  of  eighteen  years,  their  sur- 
viving parent  has  the  enjoyment  of  their  property,  until 
they  attain  that  age ;  and  the  father  insisted,  that  as  the 
children  were  under  that  age,  and  the  marriage  contract 
and  compromise,  under  which  they  took  one  fourth, 
were  both  made  in  Holland,  the  children  must  take  it, 
subject  to  his  paternal  rights  by  the  law  of  Holland. 
The  Vice-Chancellor  held,  that  the  father  was  not  so 
entitled.  On  that  occasion  the  learned  Judge  said  : 
"  By  the  Code  Napoleon,  which  is  the  law  of  Holland,  as 
well  as  of  France,  when  children  are  under  the  age  of 
eighteen,  their  surviving  parent  has  the  enjoyment  of 
their  property  until  they  attain  that  age.  But  that  is 
nothing  more  than  a  mere  local  right,  given  to  the  sur- 
viving parent,  by  the  law  of  a  particular  country,  so 
long  as  the  children  remain  subject  to  that  law :  and,  as 
soon  as  the  children  are  in  a  country  where  that  law  is 
not   in  force,  their  rights  must  be  determined  by  the 


CH.  X.]  REAL   PROPERTY.  769 

law  of  the  country,  where  they  happen  to  be.  These 
children  were  never  subject  to  the  law  of  Holland :  they 
were  both  born  in  this  country,  and  have  resided  there 
ever  since.  The  consequence  is,  that  this  judicial  de- 
cree has  adjudged  certain  property  to  belong  to  two 
British-born  subjects  domiciled  in  this  country ;  and  so 
long  as  they  are  domiciled  in  this  country,  their  per- 
sonal property  must  be  administered  according  to  the 
law  of  this  country.  The  claim  of  their  father  does 
not  arise  by  virtue  of  the  contract,  but,  solely,  by  the 
local  law  of  the  country  where  he  was  residing  at  the 
time  of  his  marriage ;  and,  therefore,  this  property  must 
be  considered  just  as  if  it  had  been  an  English  legacy 
given  to  the  children  :  and  all  that  the  father  is  entitled 
to,  is  the  usual  reference  to  the  master  to  inquire,  what 
allowance  ought  to  be  made  to  him  for  the  past  and 
future  maintenance  of  his  children."  ^ 


>  Gambier  v.  Gambler,  7  Sim.  R.  263,  270. 


65 


770  •     CONFLICT    OF  LAWS.  [CH.  XI. 


CHAPTER  XL 


WILLS   AND    TESTAMENTS. 


§  464.  Having  taken  these  general  views  of  the  ope- 
ration of  foreign  hiw  in  regard  to  movable  property, 
and  immovable  property,  and  ascertained,  that  the  gene- 
ral principle,  at  least  in  the  common  law,  adopted  in 
relation  to  the  former  is,  that  it  is  governed  by  the 
law  of  the  domicil  of  the  owner,  and  in  relation  to  the 
latter,  that  it  is  governed  by  the  law  of  the  place  where 
it  is  locally  situate ;  we  now  come  to  make  a  more  im- 
mediate application  of  these  principles  to  two  of  the 
most  important  classes  of  cases  arising,  constantly  and 
uniformly,  in  all  civilized  human  societies.  One  is,  the 
right  of  a  person,  by  an  act  or  instrument,  to  dispose 
of  his  property  after  his  death  ;  the  other  is  the  right 
of  succession  to  the  same  property,  in  case  no  such  post- 
mortuary  disposition  is  made  of  it  by  the  owner.  The 
former  involves  the  right  to  make  last  wills  and  testa- 
ments ;  and  the  latter  the  title  of  descent  and  the  dis- 
tribution of  property  cib  intestcdo.  We  shall  accordingly 
in  this  and  the  succeeding  chapter  exclusively  discuss 
the  subject  of  foreign  law,  in  relation  to  testaments,  and 
to  successions,  and  distributions  of  movable  and  immov- 
able property. 

§  465.  And  first,  in  relation  to  testaments  of  movable 
property.'     So  far  as  respects  the  capacity  or  incapa- 

1  See  4  Burge,  Coram,  on  Col.  and  For.  Law,  Pt.  2,  ch.  12,  p.  579, 
580,  581  ;  post,  ^  466,  467. 


CH.  XI.]  WILLS    AND    TESTAMENTS.  771 

city  of  a  testator,  to  make  a  will  of  personal  or  movable, 
property,  we  have  already  had  occasion  to  consider  the 
subject  in  another  place.  The  result  of  that  examina- 
tion was,  that  the  law  of  the  actual  domicil  of  the  party, 
at  the  time  of  the  making  of  his  will  or  testament,  was 
to  govern  as  to  that  capacity  or  incapacity.^  We  may 
therefore  proceed  to  the  consideration  of  the  forms  and 
solemnities,  by  which  wills  of  personal  estates  are  to  be 
governed.  And  here  it  may  be  stated  now  to  be  a  well- 
settled  principle  in  the  English  law,  that  a  will  of  per- 
sonal or  movable  property,  regularly  made  according  to 
the  forms  and  solemnities  required  by  the  law  of  the 
testator's  domicil,  is  sufficient  to  pass  his  personal  or 
movable  property  in  every  other  country,  in  which  it 
is  situated.  But  this  doctrine,  although  now  very  firmly 
established,  was  for  a  great  length  of  time  much  agitat- 
ed and  discussed  in  Westminster  Ilall.^  On  one  occa- 
sion Lord  Loughborough  laid  down  the  doctrine,  that 
with  i-Gspect  "to  tlie  rlisposition.  of  inovable  property^  find 
with  respect  to  the  transmission  of  it,  either  by  succes- 
sion, or  by  the  act  of  the  party,  it  follows  the  law  of 
the  person.^     The  owner .  in  any  country  may  dispose 


1  Ante,  §  52  to  §  62,  ^64  to  ^  78,  §  101  to  ^  106,  §  368,  ^  430  to 
§434.  See  also  2  Boullenois,  Appx.  p.  38;  4  Burge,  Comm.  on  Col.  and 
For.  Law,  Pt.  2,  ch.  12,  p.  577,  578,  579. 

2  See  Brodie  v.  Barry,  2  Ves.  &  Beames,  R.  127,  131 ;  Bempde  v. 
Johnstone,  3  Ves.  R.  192,  200 ;  Trice  v.  Dewhurst,  8  Sim.  R.  279,  299, 
300  ;  Moore  v.  Budd,  4  Hagg.  Eccles.  R.  346,  354  ;  Robertson  on  Suc- 
cessions, p.  99,  191,  214,  215,  285,  290,  297  ;  The  case  of  the  Goods  of 
Marshall  Bennett,  before  Sir  H.  Jenner,  July,  1840,  London  IMonthly 
Law  Magazine,  Sept.  1840,  p.  204. 

^  Sill  V.  Worswick,  1  H.  Black.  690.  See  also  Ommaney  v.  Bingham, 
cited  5  Ves.  757  ;  3  Ilagg.  Eccles.  R.  414,  note  ;  Stanley  v.  Barnes, 
3  Hagg.  Eccles.  R.  373  ;  Hogg  v.  Lashley,  3  Hagg.  Eccles.  R.  415, 
note. 


772  CONFLICT    OF   LAWS.  [CH.  XI. 

of  his  personal  property.  On  another  occasion  Lord 
Thurlow  asserted  the  same  doctrine  as  to  succession  to 
personal  property,  and  by  implication  as  to  wills.^ 
Lord  Ellenborough  put  it  as  clear  in  his  day.  He  ob- 
served ;  "  It  is  every  day's  experience  to  recognize  the 
law  of  foreign  countries,  as  binding  on  personal  proper- 
ty ;  as  in  the  sale  of  ships,  condemned  as  prize  by  the 
sentences  of  foreign  courts,  the  succession  to  personal 
property  by  will  or  intestacy  of  the  subjects  of  foreign 
countries."^  But  antecedently  to  this  period  many 
learned  doubts  and  discussions  had  existed  on  the  sub- 
ject.^ In  the  Duchess  of  Kingston's  case,  a  will  of  per- 
sonal property  executed  in  France,  but  not  in  conform- 
ity to  the  laws  of  that  country,  was  admitted  to  probate 
in  the  Ecclesiastical  Courts  of  England  in  1791,  it  being 
duly  executed  according  to  the  English  forms,  although 
she  was  domiciled  in  France  at  the  time  of  making  the 
will,  and  also  at  the  time  of  her  death.^ 

§  466.  Even  at  so  late  a  period  as  1823,  Sir  John 
Nicholl  doubted,  whether  a  will  of  personal  property 
made  abroad  by  an  English  subject  domiciled  abroad, 
ought  to  be  held  valid,  unless  it  was  executed  in  con- 
formity to  the  forms  prescribed  by  the  English  law. 
The  ground  of  his  doubt  was,  whether  an  English  sub- 
ject was  entitled  to  throw  off  his  country  {cxuere  jjcdriam) 
so  far  as  to  select  a  foreign  domicil  in  complete  deroga- 


1  Bruce  v.  Bruce,  2  Bos.  &  Pull.  229,  note. 

2  Potter  V.  Brown,  5  East,  R.  130  ;  Ferraris  v.  Marquis  of  Hertford, 
The  English  Jurist,  April  1,  1843,  p.  2G2  ;  S.  C.  3  Curteis,  R.  468. 

3  See  Bempde  v.  Johnstone,  3  Ves.  198,  200  ;  Somerville  v.  Somer- 
ville,  5  Ves.  750  ;  Balfour  v.  Scott,  6  Brown,  Pari.  Cases,  550,  Tomlin's 
edit.  ;  S.  C.  2  Addams,  Eccles.  R.  15,  note. 

4  See  Curling  v.  Thornton,  2  Addams,  Eccles.  R.  21.  See  4  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  12,  p.  588,  589,  590. 


CH.  XI.]  WILLS   AND   TESTA^IENTS.  773 

tion  of  his  native  domicil,  and  thus  to  render  his  pro- 
perty in  England  distributable  by  succession  or  testa- 
ment according  to  the  foreign  law.  He  took  a  distinc- 
tion between  testacy  and  intestacy,  (assuming,  for  the 
sake  of  argument,  that  in  the  latter  case  the  foreign 
law  might  prevail,)  thinking,  that  cases  of  testacy  might 
be  governed  by  very  different  considerations  from  those 
of  intestacy.  Even  if  a  will,  executed  according  to  the 
law  of  the  place  of  the  testator's  domicil,  would  in  such 
a  case  be  valid,  he  contended,  that  it  by  no  means  fol- 
lowed universally,  and  upon  principle,  that  a  will,  to  be 
valid,  must  strictly  conform  to  that  law,  which  would 
have  regulated  the  succession  to  the  testator's  property, 
if  he  had  died  intestate.  And,  therefore,  he  held,  that 
a  will  of  personal  property,  made  by  a  British  subject 
in  France,  according  to  the  forms  of  the  English  law, 
was  good  as  to  such  property  situate  in  England.  He 
admitted,  that  as  to  British  subjects  domiciled  in  any 
part  of  the  United  Kingdom,  the  law  of  their  domicil 
must  govern  in  regard  to  successions  and  wills ;  and  so, 
the  like  law  must  govern  in  regard  to  successions  and 
wills  of  foreigners  resident  abroad.  The  restriction, 
which  he  sought  to  establish  was,  that  a  British  subject 
could  not,  by  a  foreign  domicil,  defeat  the  operation  of 
the  law  of  his  own  country,  as  to  personal  property 
situate  in  the  latter.^ 

§  467.  To  this  opinion  the  same  learned  Judge  firmly 
adhered  in  a  still  later  case.  But  upon  an  appeal,  the 
decision  was  overturned  by  the  High  Court  of  Dele- 
gates, and  the  doctrine  fully  established,  that  the  law 


1  Curling  v.  Thornton,  2  Addams,  Eccles.  R.  p.   G,  10  to  25  ;  S.  C, 
8  Sim.  R.  p.  310,311. 

65* 


774  CONFLICT    OF   LAWS.  [CH.    XL 

of  the  actual  foreign  domicil  of  a  Britisli  subject  is  ex- 
clusively to  govern  in  relation  to  his  testament  of  per- 
sonal property ;  as  it  "would  in  the  case  of  a  mere 
foreigner.^  This  case  is  the  stronger ;  because  it  was 
the  case  of  a  will,  and  several  codicils,  made  according 
to  the  law  of  Portugal,  and  also  of  several  codicils 
made,  not  according  to  the  law  of  Portugal  where  the 
testator  was  domiciled.  The  will  and  codicils  executed 
according  to  the  Portuguese  law  were  held  valid ;  the 
others  were  held  invalid.  And  this  doctrine  necessarily 
goes  to  the  extent  of  establishing,  not  only  whether 
there  be  an  instrument  called  a  will ;  but  whether  it 
constitutes  a  will  in  the  sense  of  the  Lex  loci  The 
doctrine  also  applies,  whether  the  personal  property  be 
locally  situate  in  the  domicil  of  the  testator,  or  in  a 
foreign  country.^ 

§  468.  The  same  doctrine  is  now  as  firmly  established 
in  America.  The  earliest  case,  in  which  it  was  directly 
in  judgment,  was  argued  in  the  Supreme  Court  of  Penn- 
sylvania in  1808  ;  ^  and  this  case  may  have  been  truly 
said  to  have  led  the  way  to  the  positive  adjudication  of 
this  important  and  difficult  doctrine.  There,  a  foreign 
testator,  domiciled  abroad,  had  made  a  will  of  his  per- 
sonal estate,  invalid  according  to  the  law  of  his  domicil, 
but  valid  according  to  the  law  of  Pennsylvania ;  and 
the  question  was,  whether  it  was  competent  and  valid 
to  pass  personal  property  situate  in  Pennsylvania.     The 


'  Stanley  v.  Barnes,  3  Hagg.  Eccles.  R.  p.  373  to  465  ;  Moore  v.  Da- 
vell,  4  Hagg.  Eccles.  R.  346,  354  ;  S.  P.  Price  v.  Dewhurst,  4  Mylne  & 
Craig,  76,  80,  82  ;  Ferraris  v.  Marquis  of  Hertford,  The  English  Jurist, 
April  1,  1843,  p.  262  ;  S.  C.  3  Curteis,  R.  468. 

2  Ibid.  Countess  of  Ferraris  v.  Marquis  of  Hertford,  The  English  Jurist, 
April  1,  1843,  p.  262  ;  S.  C.  3  Curteis,  R.  468. 

3  Desesbats  v.  Berquiers,  1  Binney,  R.  336. 


CH.  XI.]  WILLS   AND    TESTAMENTS.  775 

Court  decided,  that  it  was  not ;  and  asserted  the  general 
doctrine,  that  a  will  of  personal  estate  must,  in  order  to 
pass  the  property,  be  executed  according  to  the  law  of 
the  place  of  the  testator's  domicil  at  the  time  of  his 
death.  If  void  by  that  law,  it  is  a  nullity  everywhere, 
although  it  is  executed  with  the  formalities  required  by 
the  law  of  the  place,  where  the  personal  property  is 
locally  situate.  The  Court  asserted,  that  in  this  respect 
there  was  no  difference  between  cases  of  succession  by 
testament,  and  by  intestacy.^  The  same  doctrine  has 
been  since  repeatedly  recognized  by  other  American 
courts,  and  may  now  be  deemed  as  of  universal  author- 
ity here.^  [Upon  the  same  principle  a  will  of  personal 
property  executed  by  a  testator  in  a  foreign  state,  but 
who  has  not  lost  his  domicil  in  his  native  state,  is  valid 
if  executed  according  to  the  laws  of  his  domicil,  al- 
though not  in  accordance  with  the  law  of  the  place  of 
its  execution.^] 

§  469.  In  Scotland  the  doctrine  was  formerly  in- 
volved in  many  doubts.  By  the  law  of  Scotland,  ille- 
gitimate persons  are  not  deemed  capable  of  making  a 
will ;  and  hence  a  will  of  movables  in  Scotland,  made  by 
such  a  person,  domiciled  in  England,  was  formerly  held 
in  Scotland  to  be  invalid.^  In  like  manner  a  nun- 
cupative will,  being  in  Scotland  invalid,  was  formerly 


1  Desesbats  v.  Berquiers,  1  Binn.  R.  336;  S.  P.  Moore  v.  Budd, 
4  Hagg.  Eccles.  R.  346,  354  ;  Grattan  v.  Appleton,  3  Story,  R.  755. 

2  See  IIq]Tnes  v.  Remsen,  4  Johns.  Ch.  R.  460,  469 ;  Harvey  v.  Rich- 
ards, 1  Mason,  R.  381,  and  cases  cited,  p.  408,  note  ;  Dixon's  Ex'ors  v. 
Ramsay's  Ex'ors,  3  Cranch,  R.  319  ;  De  Sobry  v.  De  Laistre,  2  Harr.  & 
Johns.  R.  193,  224  ;  Armstrong  v.  Lear,  12  Wheat.  R.  169  ;  Rue  High, 
App.  2  Doug.  522  ;  Harrison  v.  Nixon,  9  Peters,  R.  483,  504,  505. 

3  Rue  High,  App.  2  Doug.  515. 

4  Ersk.  Inst.  B.  3,  tit.  2,  ^  41,  p.  515 ;  3  Kames,  Equity,  B.  3,  ch.  8, 
§3. 


776  CONFLICT   OF   LAWS.  [CH.   XI. 

held  invalid  to  pass  movables  in  Scotland,  although  the 
will  was  made  in  England  (where  such  a  will  is  valid) 
by  a  person  domiciled  there.i  But  the  general  doctrine 
is  now  the  same  in  Scotland  as  in  England.  The  law 
of  the  domicil  universally  prevails  as  to  successions  and 
wills  of  movables  in  other  countries." 

§  470.  Foreign  jurists  are  as  generally  agreed,  as  to 
the  doctrine  in  regard  to  movables,  upon  the  ground, 
maintained  by  all  of  them,  that  MoUlia  seqimntur  joer- 
sonam.^  John  Voet  lays  down  the  rule  in  the  following 
terms.  In  siiccessionihus,  iestandi  facilitate,  contradihiis, 
aliisque,  mohilia,  uhiciinqiie  sita,  regi  debere  domicilii  jure, 
noil  vero  legihiis  loci  illiiis,  in  quo  naturaliter  sunt  constitiita.^ 
He  adds ;  Ibique  D.  D.  [Doetores)  moUlium  tamen  ratione 
in  dispositionibus  testamentariis,  diim  quceritur,  an  illce  in 
wiiverswn  inrmittendce  sint,  nee  ne,  uti  et  ab  intestato  suc- 
cessionibus,  donationibiis  inter  conjuges  vetitis  permissisve,  et 
aliis  similibus,  de  .juris  rigore  communi  quasi  gentium  omnium 
consensu  laxatum  est ;  sic  lit  ex  comitate  profecta  regida 
praxi  universali  invaluerit,  mobilia  in  dubio  regi  lege  loci,  in 
quo  eorum  dominus  domiciliimi  fovet,  ubicunque  ilia  vere 
exstiterint.^ 


1  2  Karnes,  Equity,  B.  3,  ch.  8,  §.  3,  p.  345. 

2  See  Bempde  v.  Johnstone,  3  Ves.  198,  201  ;  Somerville  t>.  Somerville, 
5Ves.  R.  757;  Brodie  v.  Barry,  2  Ves.  &  Beames,  127,  131,  and  the 
cases  cited,  ante,  ^  495  ;  Ersk.  Inst.  B.  3,  tit.  2,  §  40,  41  ;  2  Kames, 
Equity,  ch.  8,  i^  6. 

3  See  1  BouUenois,  Obser.  28,  p.  096  to  721  ;  Cochin,  CEuvres,  Tom.  5, 
p.  85,  4to.  edit. ;  ante,  ^  362,  ^  362  a,  §  399  ;  4  Burge,  Cdhm.  on  Col. 
and  For.  Law,  Pt.  2,  ch.  12,  p.  579,  580  ;  FceHx,  Conflit  des  Lois,  Revue 
Etrang.  et  Franc.  Tom.  7,  1840,  ^  40  to  ^  50,  p.  346  to  360 ;  post,  ^  481. 

4  J.  Voet,  ad  Pand.  Lib.  1,  tit.  4,  P.  2,  §  11,  p.  44. 

5  J.  Voet,  ad  Pand.  Lib.  1,  tit.  4,  P.  2,  ^S  12,  p.  45.  See  also  J.  Voet, 
ad  Pand.  Lib.  28,  tit.  1,  n.  13,  15,  44  ;  4  Burge,  Comm.  on  Col.  and  For. 
Law,  Pt.  2,  ch.  12,  p.  579,  580,  590  ;  P.  Voet,  de  Statut.  ^  9,  ch.  1,  n.  8, 
p.  255,  edit.  1715  ;  Id.  p.  309,  edit.   1661  ;  Burgundus,  Tract.  1,  n.  36  ; 


CH.  XI.]  WILLS   AND    TESTAMENTS.  777 

§  471.  Vattel  has  spoken  in  terms,  admitting  of  more 
question,  as  to  the  extent  of  their  meaning.  After  ob- 
serving, that  a  foreigner  in  a  foreign  country  has  by- 
natural  right  the  liberty  of  making  a  will,  he  remarks ; 
"As  to  the  forms  or  solemnities  appointed  to  settle  the 
validity  of  a  will,  it  appears,  that  the  testator  ought  to 
observe  those  which  are  established  in  the  country 
where  he  makes  it,  unless  it  be  otherwise  ordained  by 
the  laws  of  the  state  of  which  he  is  a  member;  in 
which  case  he  will  be  obliged  to  observe  the  forms 
which  they  prescribe,  if  he  would  validly  dispose  of 
the  property  which  he  possesses  in  his  own  country. 
The  foreign  testator  cannot  dispose  of  his  property, 
movable  or  immovable,  which  he  possesses  in  his  own 
country,  otherwise  than  in  a  manner  conformable  to  the 
laws  of  that  country.  But  as  to  movable  property, 
specie,  and  other  effects,  which  he  possesses  elsewhere, 
which  he  has  with  him,  or  which  follow  his  person,  we 
ought  to  distinguish  between  the  local  laws,  whose  effect 
cannot  extend  beyond  the  territory,  and  those  laws, 
which  peculiarly  affect  the  character  of  citizens.  The 
foreigner,  remaining  a  citizen  of  his  own  country,  is 
still  bound  by  those  last-mentioned  laws,  wherever  he 
happens  to  be,  and  is  obliged  to  conform  to  them  in  the 
disposal  of  his  personal  property,  and  all  his  movables 
whatsoever.  The  laws  of  this  kind,  made  in  the  coun- 
try where  he  resides  at  the  time,  but  of  which  he  is  not 
a  citizen,  are  not  obligatory  with  respect  to  him.     Thus, 


Id.  Tract.  G,  n.  1,  2,  3  ;  Fcelix,  Conflit  des  Lois,  Revue  Etrang.  et  Franr^. 
Tom.  7,  1840,  ^  24  to  ^  27,  p.  204  to  p.  216  ;  Id.  ^  32,  33,  p.  201  to 
p.  227  ;  ante,  ^  381,  note,  ^  444  a;  4  Burge,  Comm.  on  Col.  and  For. 
Law,  Pt.  2,  ch.  5,  p.  217,  218  ;  Id.  ch.  12,  p.  576  to  580  ;  post,  ^  479  ; 
Sand.  Decis.  Frisic.  Lib.  4,  tit.  1,  Defin.  14,  p.  142,  143. 


778  CONFLICT    OF   LAWS.  [CH.  XL 

a  man  who  makes  his  will,  and  dies  in  a  foreign  country, 
cannot  deprive  his  widow  of  the  part  of  his  movable 
effects,  assigned  to  that  widow  by  the  laws  of  his  own 
country.  A  Genevan,  obliged  by  the  laws  of  his  coun- 
try to  leave  a  portion  of  his  personal  property  to  his 
brothers  or  cousins,  if  they  are  his  next  heirs,  cannot 
deprive  them  of  it  by  making  his  will  in  a  foreign 
country,  while  he  continues  a  citizen  of  Geneva.  But 
a  foreigner,  dying  at  Geneva,  is  not  obliged  in  this  re- 
spect to  conform  to  the  laws  of  the  Republic.  The  case 
is  quite  otherwise  in  respect  to  local  laws.  They  regu- 
late what  may  be  done  in  the  territory,  and  do  not  ex- 
tend beyond  it.  The  testator  is  no  longer  subject  to 
them  when  he  is  out  of  the  territory ;  and  they  do  not 
affect  that  part  of  his  property  which  is  also  out  of  it. 
The  foreigner  is  obliged  to  observe  those  laws  in  the 
country  where  he  makes  his  will,  with  respect  to  the 
goods  he  possesses  there."  ^ 

§  472.  Vattel  is  in.  this  passage  principally  consider- 
ing the  effect  of  the  law  of  a  foreign  country  upon  a 
foreigner,  wdio  is  resident  there.  And  there  can  be  no 
doubt  that  every  country  may  by  its  laws  prescribe 
whatever  rules  it  may  please,  as  to  the  disposition  of 
the  movable  property  of  its  citizens,  either  inter  vivos  or 
testamentary.  But  it  is  equally  clear,  that  such  rules 
are  of  no  obligation  as  to  movable  property  in  any  other 
country,  and  can  be  in  force  there  only  by  the  comity 
of  nations.  So  that  a  will  of  such  movable  property, 
made  in  the  foreign  country  where  he  is  domiciled,  and 
according  to  its  laws,  will  be  held  valid,  whatever  may 
be  the  validity  of  such  a  will  in  the   country  to  which 


'  Vattel,  B.  2,  ch.  8,  ^  111.     See  post,  ^  479. 


CH.  XI.]  WILLS    AND    TESTAMENTS.  779 

the  testator  owes  his  allegiance  by  birth.  But  the  dis- 
cussion, in  which  we  are  engaged,  does  not  respect  the 
effect  of  any  local  prohibitory  laws  over  movable  pro- 
perty within  the  particular  territory,  but  the  general 
principles  which  regulate  the  disposition  of  it  when  no 
such  prohibitory  laws  exist.  And  here,  by  the  general 
consent  of  foreign  jurists,  the  law  of  the  domicil  of  the 
testator  governs  as  to  transfers  inter  vivos  and  testament- 
ary.^ 

[§  472.  a.  A  pertinent  illustration  of  the  exception 
alluded  to  in  the  last  section  as  to  the  effect  of  a  will 
abroad,  when  its  provisions  conflict  with  the  prohibitory 
laws  of  another  State,  recently  occurred  in  America. 
In  that  case  a  person  domiciled  in  Virginia,  by  his  will 
made  and  executed  in  that  State,  directed  that  certain 
of  his  slaves,  then  being  in  Mississippi,  should  be  eman- 
cipated, and  sent  to  Africa.  By  the  law  of  Virginia 
such  a  disposition  was  valid ;  by  the  law  of  Mississippi 
it  was  not.  The  Courts  of  the  latter  State  held  the 
will  inoperative  as  to  the  slaves  in  that  State,  because 
it  contravened  the  public  policy  of  the  State,  as  de- 
clared by  an  express  statute,  and  was  not  embraced  in 
the  general  rule  of  comity  regulating  the  law  of  the 
domicil.^] 

1  See  ante,  ^  465;  Hertii,  Opera,  De  Collis.  Leg.  ^  4,  n.  6,  p.  112, 
edit.  1737  ;  Id.  p.  174,  edit.  1710;  Pothier,  Cout.  d'0rl6ans,  ch.  1,  ^  2, 
n.  24.  J.  Voet,  ad  Pand.  Tom.  2,  Lib.  38,  tit.  17,  §  34  ;  ante,  §  470.  — 
Very  difficult  questions,  however,  may  still  arise,  and  to  what  is  to  be 
deemed  the  real  domicil  of  a  party,  who  is  a  native  of  one  country,  and 
who  has  yet  been  long  resident  in  another.  The  quo  animo,  with  which 
such  residence  has  been  originally  taken,  or  subsequently  upheld,  often 
becomes  a  very  important  element  in  the  decision.  See  ante,  §  44,  ^  49  ; 
Attor.  Gen.  v.  Dunn,  6  Mees.  &  Welsh.  511  ;  De  Bonneval  v.  De  Bon- 
neval,  1  Curteis,  Eccl.  R.  856;  post,  ^  481,  note;  Rlunro  u.  IMunro, 
1  Rob.  R.  (House  of  Lords)  p.  493. 

2  Mahorner  v.  Hooe,  9  Smedes  &  Marshall,  247,  where  this  subject  is 
examined  at  great  length. 


780  CONFLICT   OF  LAWS.  [CH.  XI. 

§  473.  But  it  may  be  asked,  What  will  be  the  effect 
of  a  change  of  domicil  after  a  "will  or  testament  is  made 
of  personal  or  movable  property,  if  it  is  valid  by  the  law 
of  the  place  where  the  party  was  domiciled  when  it 
was  made,  and  not  valid  by  the  law  of  his  domicil  at 
the  time  of  his  death  ?  The  terms,  in  which  the  general 
rule  is  laid  down,  would  seem  sufficiently  to  establish 
the  principle,  that  in  such  a  case  the  will  or  testament  is 
void ;  for  it  is  the  law  of  his  actual  domicil  at  the  time 
of  his  death,  and  not  the  law  of  his  domicil  at  the  time 
of  making  his  will  or  testament  of  personal  property, 
which  is  to  govern.^  This  doctrine  is  very  fully  recog- 
nized and  laid  down  by  John  Voet.  Tamen,  si  qiiis  Jiahi- 
tans  in  loco,  in  quo  minor  annormn  mmierus  in  tesiaiore  re- 
quinticr,  veluti  in  HoUandid,  ibidem  anno  decimo  quinto  tes- 
tamentumfecerii,deindc  vero  domiciliiim  alio  transtiderit,  iiU 
necdiim  inr  cdatem  testari  licet,  veluti  TJltraj ectmn,  iihi 
plena  pulertas  in  mascido  testatore  exigitur,  testamentiim  ejus 
quantum  ad  molilia  per  talem  migrationem  irritwn  efficitur. 
Idemque  eveniet,  si  Hollandiis  iixorem  hwredem  instituerit, 
(quod  ihi  licitum,)  deinde  vero  ad  aliam  migret  regionem, 
ibique  domiciliiim  figat,  iihi  gratificaiio  inter  conjuges  ne  sih 
premo  quidem  elogio  permissa  est ;  nam  et  hoe  in  casu  mo- 
bilium  intuitu  in  irritwn  deducitur  voluntas  ejus  ;  cum  mobilia 
in  suecessione  tcstatd  vel  intestatd  regantur  ex  lege  domicilii 
dcfuncti,  adeoque  res  devenerit  in  Usee  ad  eiim  casum,  a  quo 
propter  qualitatem  testatoris,  vel  Jionorati,  initium  habere  ne- 
quit.  Neque  enim  sufficit  in  honorato,  quod  tempore  facti 
testamenti  capax  sit,  sed  et  tempore  mortis  testatoris  cum 


1  Sec  Desesbats  v.  Berquiers,  1  Binn.  R.  336  ;  Potinger  r.  Wightman, 
3  Meriv.  R.  59,  68 ;  Henry  on  Foreign  Law,  Appx.  p.  196  ;  2  Boulle- 
nois,  ch.  1,  p.  2,  &c. ;  Id.  p.  7,  &c.  ;  Id.  p.  54  ;  Id.  p.  57 ;  ante,  §  55  to 
74 ;  4  Burge,  Comm.  on  Col.  on  For.  Law,  Pt.  2,  ch.  12,  p.  580,  581. 


CH.  XI.]  AVILLS   AND    TESTAMENTS.  781 

capacem  esse,  necesse  est}  Again  he  adds ;  Quod  si  is, 
cKj'its  tcstamentum  migratlone  ex  Ilollcmdid  ad  regionem 
Ultrajectinam  imtum  facUim  fiicrat,  ibidem  cvtatem  expleve- 
rit  in  testatore  requisitam,  de  novo  quidem  repeterc  solenniter 
latest p'ior em  voluntcdem,  cdque  Hade  novotesiari;  sedsiid 
nonfeceritf  testamentum,  aMea  anno  cetatis  decimo  qidnto  in 
Ilollandid  conditum^ipso  jure  quantum  ad  molilia  velimmo- 
Mia  Ultrajectina  neqiiaquam  convalescit ;  non  magis,  qiiam 
jure  civili  aut  prcetorio  testamentum  ah  im^nibere  conditum, 
si  is  pubes  /actus  in  fata  concedat?  If,  however,  he  should 
afterwards  return  and  resume  his  domicil,  where  his  first 
will  or  testament  was  made,  its  original  validity  will 
revive  also.  Diversum  esset,  si  testator  talis  iterum  postea 
mutatd  mente  in  Ilollandid  rerum  ac  fortunarum  suarum 
sedem  reponat ;  tunc  enim  voluntas  ilia,  quce  migratione  hi 
irritum  deducta  fuerat,  quasi  recupercdd  ^^ristind  ad  testan- 
dum  habilitate  redintegratur  ex  cequitate  ;  eo  modo,  quo  siis- 
tinetur  jure  prcdorio  testamentum,  ci  patrefamilias  conditum, 
quod  per  arrogationem  irritum  factum  fuerat,  si  is  iterum 
postea  suijuns  f actus  in  eddem  perstiterit  voluntatc? 

§  473.  a.  Another  question  may  arise  under  this 
head.  Suppose  a  power  of  appointment  to  be  given  to  a 
party  enabling  him  to  dispose  by  will  of  personal  estate 
situate  in  one  country,  and  he  has  his  domicil  in  another 
country  and  he  executes  the  power  and  complies  with 
all  the  requisites  of  the  power,  making  a  will  according 
to  the  law  of  the  country,  where  the  power  was  created, 
and  the  personal  estate  is  situated  ;  but  the  will  is  not 


1  J.  Voet,  ad  Pand.  Lib.  28,  tit.  3,  Tom.  2,  ^  12,  p.  292. 

2  Ibid.  ^  13,  p.  293. 

y  J.  Voet,  ad  Pand.  Lib.  28,  tit.  3,  Tom.  2,  ^  13,  p.  293  ;  4  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  12,  p.  580,  591  ;  Robinson  on 
Succession,  p.  95. 

CONFL.  66 


782  CONFLICT    OF   LAWS.  [CH.  XI. 

made  according  to  the  requisites  prescribed  by  the  law 
of  the  place  of  his  domicil ;  the  question  would  then 
arise,  whether  the  power  of  appointment  was  well  exe- 
cuted, and  the  will  entitled  to  probate  as  a  will  in  the 
country  where  the  personal  property  is  situate.  It  has 
been  held  that  it  is.^ 

[473  h.  Another  question  on  this  subject  has  recently 
arisen.  A  testator,  having  his  domicil  in  the  State  of 
Mississippi,  died  possessed  of  slaves  there,  and  directed 
in  his  will  that  if  either  of  his  two  sons,  to  whom  he  be- 
queathed his  property,  should  die  "  without  a  lawful 
heir,"  his  part,  real  and  personal,  should  go  to  the  sur- 
vivor. Each  son  received  his  portion,  and  one  removed 
with  his  slaves  into  Louisiana,  and  died  without  a  "  law- 
ful heir."  It  was  determined  that  although  by  the  law 
of  the  testator's  domicil  the  survivor  might  have  had  a 
title  to  such  slaves,  yet  as  by  the  law  of  Louisiana,  tes- 
tamentary substitutions  were  prohibited,  the  survivor's 
claim  could  not  be  enforced  in  the  latter  State.^] 

§  474.  We  next  pass  to  the  consideration  of  wills 
made  of  immovable  property.^  And  here  the  doctrine 
is  clearly  established  at  the  common  law,  that  the  law 
of  the  place  where  the  property  is  locally  situate,  is  to 
govern  as  to  the  capacity  or  incapacity  of  the  testator, 
the  extent  of  his  power  to  dispose  of  the  property,  and 
the  forms  and  solemnities  to  give  the  will  or  testament 
its  due  attestation  and  effect.^ 


1  Tatnall  v.  Hankey,  2  Moore,  Priv.  Con.  Rep.  342. 

2  Harper  V.  Stanbrough,  2  Louis.  Ann.  R.  377;  Harper  u.  Lee,  Id. 
382. 

3  See  4  Burge,  on  Col.  and  For.  Law,  Pt.  2,  ch.  12,  p.  586,  596  ;  Foe- 
lix,  Conflit  des  Lois,  Revue  Etrang.  ct  Frang.  Tom.  7,  1840,  §  40  to 
^  51,  p.  346  to  360. 

*  Coppinr.  Coppin,  2  P.  Will.  291,  293;   Curtis  v.  Hutton,  14  Ves. 


CH.  XI.] 


WILLS    AND    TESTAMENTS.  783 


§  475.  The  doctrine  of  foreign  jurists  does  not,  as  we 
have  seen,  entirely  accord  with  that  of  the  common  law  ; 


537,541;  Birthwhistle  i;.  Vardill,  1  Fonb.  Eq.  p.  444,  445,  note ;  U. 
States  r.  Crosby,  7  Cranch,  115;  Holmes  v.  Remsen,  4  Johns.  Ch.  R. 
460  ;  S.  C.  20  Johns.  R.  222;  McCormick  v.  SuUivant,  10  Wheaton,  R. 
192,  202  ;  Willis  v.  Cowper,  2  Hamm.  R.  124  ;  Henry  on  Foreign  Law, 
p.  13,  15  ;  ante,  ^  428,  434  ;  4  Burge,  Comm.  on  Col.  and  For.  Law, 
Ft.  2,  ch.  12,  p.  576  to  580  ;  Id.  Pt.  2,  ch.  4,  ^  5,  p.  169,  170  ;  Id.  Pt.  2, 
ch.  5,  p.  217.  —  Mr.  Burge,  speaking  on  this  point,  (Id.  p.  217,  218,) 
says  :  "  The  power  of  making  the  alienation  by  testament  is  no  less  quali- 
tas  rebus  impressa,  than  that  of  making  the  alienation  by  contract.  When, 
therefore,  the  question  arises,  whether  the  immovable  property  may  be 
disposed  of  by  testament,  recourse  must  be  had  to  the  lex  loci  rei  sitae. 
That  law  must  also  decide,  whether  the  full  and  unlimited  power  of  dispo- 
sition is  enjoyed,  or  whether  it  is  given  under  restriction.  The  validity  of 
the  testamentary  disposition  depends  in  the  latter  case  on  its  conformity  to 
that  restriction,  whether  the  restriction  consists  in  limiting  the  extent  or 
description  of  property,  over  which  the  power  of  disposition  may  be  exer- 
cised, or  the  persons  in  whose  favor  the  disposition  is  made,  or  in  requiring 
that  the  testator  should  have  survived  a  certain  number  of  days  after  the 
execution  of  the  act  by  which  the  disposition  was  made.  The  total  or 
partial  defect  of  the  will  on  the  ground,  that  it  did  not  institute  heirs,  or 
that  it  omitted  to  name  the  heirs,  the  disherison  of  the  heirs,  the  grounds 
on  which  the  disherison  may  be  justified,  are  essentially  connected  with 
the  power  of  disposing  of  immovable  property  by  testament,  and  are  there- 
fore dependent  on  the  law  of  its  situs."  Again,  Mr.  Burge  says  :  "  By 
the  jurisprudence  of  England  and  the  United  States,  a  will  devising  lands 
in  England  or  the  States,  if  the  solemnities  prescribed  by  the  Statute  of 
Frauds  have  not  been  observed,  would  be  ineffectual  to  pass  those  lands. 
This  doctrine  is  fully  warranted  by  the  qualification  which  has  been  given 
by  jurists  to  the  rule.  Lex  loci  regit  actum.  The  Statute  of  Frauds,  as 
regards  real  property  situated  in  England  and  in  the  States  of  America, 
'  Est  lex,  qus2  expresse  testatores  jubet  jus  loci  sequi,  in  quo  bona  sita 
sunt.'  It  may  be  said,  that  the  jurisprudence  which  allows  a  testament 
executed  according  to  the  solemnities  prescribed  by  the  lex  loci  actus  to 
affect  real  property  situate  in  the  country  where  that  jurisprudence  pre- 
vails, does  not  depart  from  the  general  principle,  that  the  lex  loci  rei  sitae 
must  determine,  whether  the  instrument  is  sufficient  to  dispose  of  real  pro- 
perty. The  difference  between  that  jurisprudence  and  the  doctrine  of 
England  and  the  United  States  is,  that  the  effect  of  the  latter  is  to  require 
a  particular  form  for  the  execution,  whether  it  be  made  in  England  or  in 
any  other  country,  that  is,  it  makes  no  provision  for  a  will  made  in  a 
foreign  country,  but  the  terms  of  its  enactment  are  so  comprehensive  as  to 


784  CONFLICT    OF    LAWS.  [CH.  XL 

but  even  among  them  there  is  great  weight  of  authority 
in   favor  of  the   general  principle.^     We  have  ah'eady 


include  all  wills,  in  whatever  country  they  are  made,  if  they  affect  real 
property  in  England.  In  the  other  systems  of  jurisprudence,  it  is  a  part 
of  the  lex  loci  rei  sitae,  that  its  immovable  property  should  pass  by  a  testa- 
ment executed  with  certain  formalities,  if  it  be  made  in  the  country  where 
the  property  is  situated,  but  that  if  it  be  made  in  another  country,  it  may 
be  executed  with  other  solemnities,  that  is,  with  the  solemnities  required 
by  the  law  of  that  country.  The  jurists,  whose  opinions  have  been  cited 
in  support  of  the  rule,  that  the  testament  is  valid,  if  the  testator  has  com- 
plied with  the  forms  and  solemnities  prescribed  by  the  law  of  the  place  in 
which  it  was  made,  apply  it  to  a  testament  of  movable,  as  well  as  immov- 
able property.  The  decisions  of  the  courts  of  England  on  the  validity  of 
testaments  of  personal  estate  made  abroad  are  few.  The  two  most  im- 
portant are  on  the  testaments  of  the  Duchess  of  Kingston  and  of  Bernes. 
The  former  was  resident  in  Paris  :  she  obtained  letters  patent  from  the 
King  of  France,  which  gave  her  the  same  power  of  devising,  as  she 
would  have  had  in  England.  Although  she  died  in  France,  she  had 
not  relinquished  her  English  domicil.  She  made  her  testament  in  Paris. 
It  was  clearly  null  under  the  Coutume.  But  she  had  observed  the  forms 
required  by  the  Statute  of  Frauds,  and  the  will  was  valid  according  to  the 
law  of  England,  It  was  the  opinion  of  M.  Turgot,  an  advocate  of  France, 
and  his  opinion  was  confirmed  by  the  Court  of  Probate,  that  the  testament, 
although  made  in  Paris,  was  valid.  This  opinion  proceeds  on  a  principle 
which  is  admitted  by  jurists,  that  although  a  will  made  with  the  solemni- 
ties of  the  lex  loci  actus  may  be  valid,  yet  if  it  were  made  with  the  solem- 
nities of  the  locus  rei  sita3  in  respect  of  immovables,  and  the  locus  domi- 
cilii in  respect  of  movable  property,  it  would  also  be  valid.  In  Bernes's 
will  it  appeared,  that,  although  an  Irishman  by  birth,  he  had  acquired  a 
domicil  in  Madeira.  He  made  a  will  and  several  codicils  in  that  island, 
some  of  which  were  not  executed  with  the  solemnities  required  by  the  law 
of  Portugal,  but  with  those  formalities  which  would  satisfy  the  law  of 
England.  The  decision  given  by  Sir  John  Nicholl,  that  the  latter  codicils 
were  valid,  and  that  it  was  competent  to  have  executed  them  in  the  man- 
ner which  would  be  consonant  to  the  law  of  England,  was  reversed  by  the 
delegates,  and  they  were  deemed  invalid.  Bernes,  in  this  case,  had  no 
longer  a  domicil  in  Ireland.  His  domicil  was  in  Portugal.  It  was  neces- 
sary to  establish  that  fact  to  distinguish  the  case  from  that  of  the  Duchess 
of  Kingston.  If  he  had  still  retained  his  domicil  in  Ireland,  the  codicils 
would,  upon  the  principles  referred  to,  and  which  will  be  presently  more 
fully  staled,  have  been  valid.     In  neither  of  these  cases  did  the  question 

>   See  ante,  ^  52  to  ^  G2,  ^  430  to  ^  435. 


CH.  XI.]  WILLS   AND    TESTAMENTS.  785 

had  occasion  to  consider  the  opinions  of  foreign  jurists 
as  to  the  capacity  and  incapacity  of  the  testator  to  make 
a  testament  of  immovable  property,  whether  it  is  to  be 
governed  by  the  law  of  his  domicil,  or  by  the  law  rei 
sitcv}  We  have  also  had  occasion  to  consider  their  opi- 
nions as  to  the  law  which  ought  to  govern  in  respect 
to  the  forms  and  solemnities  of  testaments  of  immovable 
property,  whether  it  is  the  law  m  sitcc,  or  that  of  the 
doraicil  of  the  testator,  or  that  of  the  place  where  the 
will  was  made.^     Putting  out  of  view  these  questions, 


arise  on  a  testament  made  with  the  solemnities  required  by  the  lex  loci 
actus,  although  deficient  in  those  required  by  the  law  of  the  domicil.  In 
another  case  the  testator  was  an  Englishman  by  birth,  and  although  he 
had  been  for  many  years  residing  in  France,  it  did  not  appear  that  he  had 
abandoned  his  English  domicil.  He  came  to  England,  and  during  his 
residence  there  made  his  will,  which  was  a  valid  testamentary  disposition 
in  respect  of  forms  and  solemnities  according  to  the  law  of  England.  It 
was  contended  that  it  ought  not  to  be  admitted  to  probate,  because  it  was 
not  made  in  the  manner  required  by  the  law  of  France.  Here  the  Court 
adopted  the  lex  loci  actus,  but  from  the  report  of  the  case,  the  learned 
judge  dwells  so  much  on  circumstances  founded  on  the  testator's  domicil 
of  origin,  that  it  would  be  perhaps  not  correct  to  describe  the  decision  as 
warranting  the  conclusion,  that,  if  the  testator  had  not  been  an  English- 
man, his  will  made  in  England  would  have  been  valid.  In  Nasmyth's 
case,  the  testator  was  domiciled  in  Scotland,  and  his  will  was  made  and 
found  there.  He  died  in  England  in  transitu.  The  Court  of  Probate  in 
England  held  itself  bound  to  defer  to  the  law  of  Scotland.  In  giving 
effect  to  a  testament  made  with  the  solemnities  prescribed  by  the  lex  loci 
actus,  jurists  do  not  deny  it  to  a  testament  made  according  to  the  forms 
required  by  the  lex  loci  rei  sitffi,  if  it  be  immovable,  or  the  lex  loci  domi- 
cilii, if  it  be  personal  property,  which  is  the  subject  of  the  disposition  : 
"  Proinde,si  quis  eo,quod  ad  testandum  expeditius  sua  causa  comparatum 
est,  noluerit  uti,  quod  ei  forte  promptius  sit  componere  suprema  ad  loci 
leges,  cui  bona  subjaceant,  quo  minus  testamentum  ejus  valiturum  sit,  norj 
video."  Paul  Voet  and  John  Voet  adopt  this  opinion.  4  Burge,  Comm. 
on  Col.  on  For.  Law,  Pt.  2,  ch.  1'2,  p.  58G  to  590  ;  Robertson  on  Suc- 
cession, p.  95.  See,  also,  Harrison  v.  Nixon,  9  Peters,  R.  505  ;  post, 
479  g. 

1  See  Ante,  ^  52  to  ^  62,  ^  430  to  ^  435. 

2  See  ante,  ^  3G3  to  ^  373,  ^  435  to  ^  440  ;    1  Burge,  Comm.  on  Col. 

06* 


786  CONFLICT    OF   LAWS.  [CH.  XL 

as  to  the  form  and  solemnities  of  acts,  and  the  capacity 
and  incapacity  of  the  testator,  (upon  which  we  have  suffi- 
ciently commented,)  there  seems  to  be  a  general  coin- 
cidence of  opinion  among  foreign  jurists,  that  the  Lex 
rei  Slice  must  in  other  respects  govern  as  to  wills  and 
testaments  of  immovable  property.  Thus,  John  Voet 
says.  Bona  defiincti  hnmohilia^  et  qiice  juris  inteiyretatione 
pro  talihus  habentur,  defcrri  secundum  leges  loci,  in  quo  sita 
sunt}  Dumoulin's  opinion  is  to  the  same  effect.  His 
language  is ;  Aiit  statidiim  agit  in  rem,  et  qiiacunqiie  ver- 
hormn  formula  utatur,  semper  inspicitiir  locus,  iibi  I'es  sita 
est.  And  again :  Quoiies  ergo  statidum  principaliter  agit 
in  personam  et  in  ejus  consequentiam,  agit  in  res  immohiles, 
nan  extenditiir  ad  res  sitas  in  locis,  uhijus  commune  vel  sta- 
tidum hci  diversum  est?  Hertius  is  even  more  direct. 
Si  Lex  directo  rei  imponihcr,  ea  locum  liahet,  libicmique  eiiam 
locorum  et  a  quocunque  actus  celehretur?  He  adds  in  ano- 
ther place  :  Rehis  fertur  Lex,  cum  certam  iisdem  qua- 
litatem  imprimit,  vel  in  cUiendo,  v.  g.  ut  ne  bona  avito possint 
alienari,  vel  in  acquirendo,  e.  g.  id  dominium  rei  immohilis 
venditor  non  aliter  accpdriiiir,  nisi  facta  fuerit  judicialis  resig- 
nation   D'Aguesseau  deems  it  a  mere  waste  of  time  to 


and  For.  Law,  Pt.  1,  ch.  1,  p.  21,  22,  23  ;  4  Burge,  Coram,  on  Col.  and 
For.  Law,  Pt.  2,  ch.  12,  p.  576  to  p.  586  ;  Id.  ch.  5,  p.  217  to  221,  See 
also  Fcelix,  Conflit  des  Lois,  Revue  Etrang.  et  Franc.  Tom.  7,  1840, 
§  40  to  §  50,  p.  346  to  360  ;  Sand,  Decis.  Frisic.  Lib.  4.  tit.  1,  Defin. 
14,  p.  142,  143. 

1  J.  Voet,  ad  Pand.  Lib.  38,  tit.  17,  ^  34,  p.  596  ;  ante,  ^  424. 

2  Molin.  Oper.  Comm.  ad  Cod.  Lib.  1,  tit.  1,  1.  1,  De  Conclus,  Statut. 
Tom.  3,  p.  556,  edit.  1681  ;  ante,  ^  443  ;  1  Froland,  M6m.  65;  Id,  Vol. 
2,  p.  779. 

3  1  Hertii,  Oper.  De  Collis,  Leg.  ^4,  n.  9,  p.  125,  edit.  1737  ;  Id.  p.  177, 
edit.  1716. 

4  1  Hertii,  Opera,  De  Collis.  Leg.  §  4,  n.  6,  p.  122,  edit.  1737  ;  Id. 
p.  174,  edit.  1716 ;  2  Burge,  Comm.  p.  843  ;  4  Burge,  Comm.  p.  217. 


CH.  XI.]  WILLS    AND    TESTAMENTS.  T87 

do  more  than  to  state  the  general  rule.^  Paul  Voet  has 
stated  the  doctrine  in  an  expressive  manner :  Kon  iamen 
statiitum  personale  sese  regiilariter  extendit  ad  bona  immoUlia 
alibi  sHa?  In  another  place  he  says,  Immobilia  statidis 
loci,  nbi  sita,  mobilia  loci  stalidis,  iibi  testator  Jiabuit  clomici- 
lium?  In  another  place  he  says,  Quid,  si  itaque  conten- 
tie  cle  aliqiio  jure  in  re,  sen  ex  ipsa  re  descendenie  ;  vel  ex 
contractu,  vel  actione  personaU,  scd  ad  rem  scriptd  ;  an  spec- 
tahitur  loci  statutwn  iibi  dominus  hahet  domicilium,  an  sta- 
tutum  rci  sitce  ?  Respondeo  ;  Statutwn  rei  sitce}  Boul- 
lenois  cites  another  jurist  as  holding  similar  language  : 
Sive  in  rem,  sive  in  personam,  loquatur  statutwn,  ad  bona 
extra  territorum  non  extenditur.  Consideratur  namque  bo- 
norimi  dominus,  tit  duplex  homo  ;  quoad  bona  nempe  sita  in 
lino  territorio  est  wins  homo  ;  et  quoad  alterius  territorii 
bona  est  alius  homo?  Again  ;  Idem  quod  infer endum,  quoad 
successionem  testamentarium ;  finge  enim  testamentum  hie 
fieri  permissum  esse,  in  Geldria  non  ita  ?  Hinc  si  quispiam 
hie  fecerit  testamentum,  non  capiet  vires,  ratione  bonoriim,  in 
Geldria  jacentium.     Talequippe  statiitum  spectatipsa  bona, 


^  D'Aguesseau,  CEuvres,  Tom.  4,  p.  636,  637.  See  Cochin,  CEuvres, 
Tom.  4,  p.  555,  4to.  edit. 

2  P.  Voet,  De  Stat.  §  4,  ch.  2,  n.  6,  p.  123,  edit.  1715  ;  Id.  p.  138, 
edit.  1061. 

3  Id.  ch.  3,  n.  10,  p.  135,  edit.  1715  ;  Id.  p.  153,  edit.  1601  ;  ante, 
M42. 

<  Id.  §  9,  ch.  1,  n.  2,  p.  252,  edit.  1715  ;  Id.  p.  305,  edit.  1001.— We 
are  not  to  confound  the  opinion  of  Paul  Voet,  as  here  expressed,  with 
v;hat  he  has  said  in  anotlicr  place,  (ante,  '5'  442,)  that  testaments  are  to 
be  executed  according  to  the  forms  and  solemnities  of  the  place  where 
they  are  made,  and  not  by  those  of  the  situs  of  the  immovable  property. 
He  takes  a  distinction  between  the  forms  and  solemnities  of  testaments, 
and  their  operation  on  this  point.  Whether  there  be  any  solid  foundation 
for  such  a  distinction,  it  is  for  the  learned  reader  to  decide.     Ante,  ^  442. 

5  Id.  ibid.  ;   1  Boullenois,  Observ.  10,  p.  154. 


788  CONFLICT    OF   LAWS.  [CH.  XL 

adeoqiie  erit  reale,  non  exserens  vires  ultra  statuentis  territo- 
riwn}  Again  he  adds :  Quid,  si  testamento  hona  immobilia 
relida,  diversis  siihjacent  stcdutis  ?  Idem  dicendum  ;  nihil 
enim  interest,  testatus  qnis,  an  intestatus  decedat,  ut  locus  sit 
regulce.  Extra  tcrritorium  jus  dicenii  impune  nonjoairtur.^ 
This  is  certainly  the  doctrine  of  the  common  law ;  for  a 
man  may  have  the  capacity  to  take  real  estate  in  one 
country,  when  he  is  totally  disabled  to  take  it  in  ano- 
ther. Boullenois  (as  we  have  seen)  lays  it  down 
among  his  general  principles,  that,  when  the  personal 
laws  of  the  domicil  are'  in  conflict  with  the  real  laws  of 
the  same  country,  or  of  a  foreign  country,  the  personal 
laws  are  to  yield  ;  and  that,  when  the  real  laws  of  the 
domicil  are  in  conflict  with  the  real  laws  of  another 
country,  both  have  ejDfect  within  their  own  respective  ter- 
ritories, according  to  the  laws  thereof.^ 

§  475.  a.  Rodenburg  admits,  that,  where  the  law  rei 
sitw  prohibits  married  persons  to  devise  their  immovable 
estate  by  will  or  testament  to  each  other ;  or  where  the 
law  rei  sitce  prohibits  certain  kinds  of  immovable  pro- 
perty from  being  devised  by  will  or  testament,  in  such 
cases  the  rei  sitce  is  to  govern,  notwithstanding  the  par- 
ties are  domiciled,  or  make  their  will  or  testament  in  a 
place  where  no  such  prohibition  prevails  ;  because  these 
are  real  laws.^  Unde  certissima  usu  ac  observatione  regula 
est,  cum  de  rebus  soli  agitur,  et  diver sa  sunt  diver sarum  pos- 
sessionum  loca  et  situs,  spectari  semper  cujusquc  loci  leges  ac 


1  P.  Voet,  De  Statut.  §  4,  ch.  3,  n.  11,  p.  135,  edit.  1715;  Id.  p.  153, 
edit.  1661. 

2  P.  Voet,  De  Statut.  ^  9,  ch.  1,  n.  4.  p.  253,  edit.    1715  ;  Id.  p.  306, 
307,  edit.  1661. 

3  1  Boullenois,  Pr.  Gen.  30,  31,  p.  8. 

4  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  5,  6  1,  2,  3,  4,  5  ;  2  Boullenois, 
Appx.  p.  35,  36,  37,  38. 


CH.  XI.]  WILLS   AND    TESTAMENTS.  789 

jura,  uhi  bona  sita  esse  prepommtiir,  sic  lit  de  talihis  nulla 
citjusqiiam  potestas  p?'ceter  territorii  leges} 

§  476.  Huberus  has  expounded  the  subject  at  large. 
We  have  ah^eady  had  occasion  to  cite  his  remarks  on  the 
subject,  so  far  as  respects  the  forms  and  solemnities  of 
testaments,  which  he  insists  are  valid  if  made  according 
to  the  forms  and  solemnities  of  the  place  where  the  tes- 
tament is  made,  although  not  made  according  to  the  forms 
and  solemnities  required  by  the  law  of  the  situs  of  the 
property.^  But  he  takes  a  distinction  between  the 
forms  and  solemnities  of  testaments,  and  the  right  to 
dispose  of  immovable  property  by  testament.  "The 
foundation  (says  he)  of  the  whole  of  this  doctrine, 
which  we  have  been  speaking  of,  and  hold,  is  the  sub- 
jection of  all  persons  to  the  laws  of  any  territory,  as  long 
as  they  act  there,  which  settles  it,  that  an  act  valid  or 
invalid  from  the  beginning,  will  be  accordingly  valid  or 
invalid  everywhere  else.  But  this  reasoning  does  not 
apply  to  immovable  property,  when  this  is  considered, 
not  as  depending  upon  the  free  disposition  of  the  head 
of  the  family,  {paterfamilias,)  but  as  having  certain 
marks  impressed  upon  it  by  the  laws  of  every  common- 
wealth in  which  it  is  situate,  which  marks  remain  in- 
delible therein,  whatever  the  laws  of  other  governments, 
or  whatever  the  dispositions  of  private  persons  may  es- 
tablish to  the  contrary.  For  it  would  cause  great  con- 
fusion and  prejudice  to  the  commonwealth,  where  im- 
movable property  is  situate,  that  the  laws,  promulgated 
concerning  it,  should  be   changed  by  any  other   acts. 


'  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  5,  ^  1  ;  2  Boullenois,  Appx. 
p.  35;  4  Burge,  Com.  on  Col.  and  For.  Law,  Pt.  2,  ch.  5,  p.  218  ;  Id. 
ch.  12,  p.  582,  583.     See  also  Burgundus,  Tract.  1,  n.  40,  41,  p.  41,  42. 

2  Ante,  ^  443,  443  a. 


790  CONFLICT    OF   LAWS.  [CH.  XI. 

Hence,  a  Frisian,  having  lands  and  houses  in  the  pro- 
vince of  Groningen,  cannot  make  a  will  thereof,  because 
the  laws  there  prohibit  any  will  to  be  made  of  such  real 
estate ;  and  the  Frisian  laws  cannot  affect  real  estate, 
which  constitutes  an  integral  part  of  a  foreign  terri- 
tory." ^  Fimdamentum  unwersce  hujus  doctrines  dixinms 
esse,  et  tenemus,  siibjedionem  hominwn  infra  Leges  ciijiisqiie 
territorii,  quamdiu  illic  agunt,  quce  facit,  id  actus  ah  initio 
validus  aid  nidhs,  alibi  quoqiie  valere  aid  nan  valere  non  ne- 
qiieat.  Sed  hcec  ratio  non  convenit  rebus  immohilibus,  quando 
nice  spectantur,  non  id  dependentes  a  libera  dispositione 
cuj usque  pcdrisfamilias,  verimi  quatemts  certce  notce  lege 
cujiisque  Reip.  ubi  sita  sunt,  illis  impressce  reperiuntur; 
lice  notce  manent  indelebiles  in  ista  RepubL,  qidcquid  aliaruni 
Civitcdum  Leges  aut  privatorwn  dispositiones,  seciis  aid  con- 
tra statuant ;  nee  enim  sine  magna  confusione  pra^judiciocpie 
Reip.  ubi  sitce  sunt  res  soli,  Leges  de  illis  latce,  dispositioni- 
hus  istis  mutari  possent.  Hinc  Frisius  habens  agros  et 
domos  in  provincia  Groningensi,  non  potest  de  illis  testari, 
quia  Lege  prohibitum  est  ibi  de  bonis  immobilibus  testari,  non 
valente  Jure  Frisico  adficere  bona,  rpice  partes  alieni  territorii 
integrantcs  constituunt.  And  yet,  with  this  clear  princi- 
ple in  view,  he  proceeds  to  declare,  that  this  does  not 
contradict  the  rule  which  he  had  already  laid  down, 
that  if  a  will  is  valid  by  the  law  of  the  place  where  it 
is  made,  it  ought  to  have  effect  even  in  regard  to  real 
property,  situate  in  foreign  countries,  by  whose  laws 
such  property  may  be  passed  by  a  will ;  because  (says 
he)  the  diversity  of  laws  in  that  respect  does  not  affect 
the  soil,  neither  speaks  of  it,  but  simply  directs  the 
manner  of  making  the  will,  which  being  rightly  done, 


1  Huberus,  Lib.  1,  tit.  3,  ^  15. 


CH.  XI.]  AVILLS    AND    TESTAMENTS.  791 

the  law  of  the  commonwealth  does  not  prohibit  the  in- 
strument to  have  validity  in  regard  to  immovables, 
inasmuch  as  no  characteristic  or  incident,  impressed  by 
the  laws  of  the  country,  is  injured  or  diminished/ 

§  477.  Burgundus  lays  down  the  doctrine  in  general 
terms,  that  in  every  thing,  which  regards  land  and  other 
real  inheritances,  it  is  the  law  of  the  situation  which  is 
to  decide.^  He  takes  the  distinction  between  movable 
and  immovable  property,  and  between  real  and  personal 
statutes.  Proindey  in  quantum  (statutum)  est  reale,  ct  im- 
niohilia  dirigit,  fines  territorii  non  egreditiir?  And  again  : 
Qiiando  hoc  iinimi  generaliter  ohtineat,  lit  in  immoUlihiis  si- 
tus semper  spectandus  venicd  ;  in  moUUhus  cmtcm  locus  do- 
micilii.^ And  (as  we  have  seen)  he  applies  the  rule  spe- 
cially to  wills.  jSi  quidem  solemnitates  testamenti  ad  jura 
personalia  non  pertinent ;  quia  sunt  qiicedam  qualitas  lonis 
ipsis  impressa,  ad  cpiam  tenetur  respicere,  quisquis  in  bonis 
aliquid  alterat!'  Quare  etiam  mihividetur  consequens,  juris 
civilis  rcdionem  exigere  in  testamentis  exarandis  adldhitionem 
solemnitatis,  quamprccscriioserit  consuetudo  cij usque possessi- 
onis.  JSfam  si  ex  solemni  testamcnto  nascitur  jus  in  ipsa,  re, 
quomodo  id  potest  prwstare  alt erius  regionis  consuetudo ,  quce 
alienis  fundis  alterationis  necessitatem  imponere  non  potest  ? 
Hoc  enini  esset  jus  dicere  extra  territorium  cui  impime  non 
paretur^     There  is  a  great  deal  of  solid  sense  in  these 


1  Huberus,  Lib.  1,  tit.  3,  ^  15.     The  original  is  cited,  ante,  k^  443  a. 

2  Ante,  \  433. 

3  Burgundus,  Tract.  1,  n.  26,  p.  38.  39. 

4  Burgundus,  Tract.  1,  n.  41,  p.  43. 

5  Burgundus,  Tract.  0,  n.  3,  p.  128  ;  ante,  §  372,  ^  438. 

6  Burgundus,  Tract.  6,  n.  1,  2,  3,  p.  129;  Id.  Tract.  1,  n.  30,  p.  38, 
39;  ante,  ^  372,  433,  438;  1  Boullenois,  Observ.  9,  p.  151.  Sec  also 
Henry  on  Foreign  Law,  p.  97,  98. 


792  CONFLICT    OF   LAWS.  [CH.  XL 

remarks ;  and  they  form  a  satisfactory  answer  to  the 
distinction  propounded  by  Huberus.^ 

§  478.  The  Scottish  law  is  in  perfect  coincidence 
with  the  common  law  on  this  subject.  Erskine,  in  the 
passage  already  cited,  has  stated,  that  in  the  convey- 
ance of  an  immovable  subject,  or  of  any  right  affecting 
heritage,  the  owner  must  follow  the  solemnities  esta- 
blished by  the  law,  not  of  the  country,  where  he  signs 
the  instrument,  but  of  the  State  in  which  the  heritage 
lies.^  And  even  if  all  due  solemnities  are  observed, 
still  no  estate  will  pass,  unless  in  conformity  with  the 
local  law.  Hence,  (he  adds,)  a  foreign  testament  be- 
queathing heritable  subjects,  situate  in  Scotland,  is  not 
sustained  in  Scotland,  although  by  the  law  of  the  coun- 
try, where  the  testament  was  made,  a  heritage  might 
have  been  actually  settled  ;  because  by  the  Scottish  law 
no  heritable  subject  can  be  disposed  of  in  that  form.^ 

§  479.  Vattel  (as  we  have  seen)  adopts  the  same  rule, 
as  a  general  one  of  the  jus  gentium.'^  As  to  bequests, 
he  asserts  in  the  most  positive  terms,  that,  when  they 
respect  immovables,  they  must  be  conformable  to  the 
law  of  the  country  where  they  are  situated.^  He 
adds :  In  the  same  manner  the  validity  of  a  testament, 
as  to  its  form,  can  only  be  decided  by  the  Judge  of  the 
domicil,  whose  sentence,  delivered  in  form,  ought  to  be 
everywhere  acknowdedged.  But  without  affecting  the 
validity  of  the  testament  itself,  the  bequest  contained 


1  Ante,  ^  476.     See  also,  4  Burgc,  Comm.   on  Col.  and  For.  Law, 
Pt.  2,  ch.  12,  p.  582  to  586. 

2  Ante,  §  436. 

3  Ersk.  Inst.  B.  3,  tit.  2,  ^  41,  p.  515,  516  ;    2  Kames,  Equity,  B.  3, 
ch.  8,  ^  3. 

4  Ante,  §  471,  472. 

5  Vattel,  B.  2,  ch.  7,  ^  85,  ch.  8,  ^  103,  110,  HI. 


CH.  XI.]  WILLS   AND    TESTAMENTS.  793 

in  it  may  be  disputed  before  the  Judge  of  the  place, 
where  the  effects  are  situated ;  because  those  effects  can 
only  be  disposed  of  conformably  to  the  laws  of  the  coun- 
try.^ Grotius  makes  a  distinction  between  the  personal 
capacity  of  making  wills  and  testaments  and  the  forms 
and  solemnities  thereof,  and  the  right  and  power  to  dis- 
pose of  property,  whether  movable  or  immovable,  hold- 
ing, that  the  forms  and  solemnities  are  governed  by  the 
law  of  the  place  where  the  will  or  testament  is  made  ; 
the  capacity  of  the  person  is  governed  by  the  law  of  his 
domicil;  and  the  right  to  dispose  of  property  is  go- 
verned in  the  case  of  movables  by  the  law  of  the  do- 
micil,  and  in  the  case  of  immovables,  by  the  law  of  the 
situs  rei.  TTbi  dc  forma  sive  solemnitate  testamenii  agUiiVy 
rcsjnci  locum  conditi  testamenti ;  id)i  de  persona  antcstari 
jus  domicilii ;  uU  de  rchus,  quce  testamento  relinqiii possiint, 
vcl  non,  respici  locum  domicilii,  in  mohilihis,  in  rehis  soli 
situm  loci}  If  it  were  necessary,  the  opinions  of  manj^ 
other  foreign  jurists  might  be  cited  to  the  same  effect ; 
but  it  would  incumber  these  pages  to  give  them  a  more 
extended  review.^ 


»  Vatte],B.2,  ch.  7,^85.    See  also  Id.  ch.8,  §  110,  111  ;  ante,M71. 

2  Grotius,  Epist.  4G7,  cited  4  Burge,  Comm.  on  Col.  and  For.  Law, 
Pt.  2,  ch.  5,  p.  220. 

3  See  4  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  5,  p.  217, 
218  ;  Id.  ch.  12,  p.  576  to  p.  585.  —  Mr.  Burge  (in  4  Burge,  Comm. 
p.  218,  219,  220  ;  Id.  p.  581  to  585)  states  the  opinions  of  many  foreign 
jurists  ;  and  among  others  he  says  (p.  218  to  220) ;  "  Ferriere  has  stated 
this  doctrine  ;  '  Si  je  legue  un  heritage  propre  situ6  en  coutume,  qui  en 
d^fende  la  disposition,  tel  legs  est  nul,  et  ne  pent  etre  parfourni  sur  les 
bicns  situes  en  cette  coutume,  quoi  qu'acquest,  parce  qu'i  I'egard  des 
choses,  dont  on  pent  disposer  par  dernicre  volonte,  on  considere  la  cou- 
tume ou  elles  sont  situc-es.  Celui  qui  a  son  domicile  en  cette  coutume 
pent  instituer  sa  femme  dans  les  biens,  qu'il  a  dans  le  pais  de  droit  6crit, 
comme  il  a  6i6  jug6  par  arret  du  14  Aout,  1754,  rapport^  par  Marion  au 
de  ses  plaidoyers,  ce  qui  doit  6tre  sans  difficultfe."     A  testament  made  in  a 

CONFL.  67 


794  CONFLICT    OF   LAWS,  [CH.    XL 

§  479  a.  Passing  from  these  considerations  as  to  the 
law,  by  which  the  forms  and  solemnities  of  wills  and 


foreign  country,  bequeathing  heritable  subjects  situated  in  Scotland,  is  not 
sustained  in  that  kingdom,  though  by  the  law  of  the  country,  where  the 
testament  was  made,  heritage  might  have  been  settled  by  testament ; 
because  by  the  law  of  Scotland  no  heritable  subject  can  be  disposed  of 
in  that  form.  On  this  principle  a  Scot's  personal  bond  taken  to  heirs  and 
assignees,  but  'secluding  executors,'  cannot  be  bequeathed  by  a  foreign 
testament.  But  in  all  questions  touching  heritable  subjects  situate  abroad, 
the  foreign  testament  will  be  given  effect  to  according  to  the  lex  loci. 
Dumoulin  lays  down  the  same  doctrine  respecting  the  restriction  on  the 
testamentary  power  over  biens  propres.  '  Unde  statutum  loci  inspicietur, 
sive  persona  sit  subdita,  sive  non  ;  itam  si  dicat,  hacredia  proventa  ab  una 
linea,  redeant  ad  hasredes  etiam  remotiores  lineas,  vel  haeredes  linese  suc- 
cedant  in  hterediis  ab  ilia  linea  proventis.  Vel  quod  illi  de  linea  non  pos- 
sunt  testari  de  illis  in  totum,  vel  nisi  ad  certam  partem.  HiBC  enim  omnia 
et  similia  spectant  ad  caput  statuti,  agentis  in  rem,  et  prascedentem  conclu- 
sionem.'  Again  ;  the  statute  which  prohibits  a  disposition  to  particular 
persons,  or  (which  involves  the  same  consequence)  requires  the  disposition 
to  be  made  in  favor  of  certain  persons,  and  therefore  excludes  all  others, 
is  a  real  law.  '  Directe  enim  in  rerum  alienationem  scripta  hsec  lex  realis 
omnino  dicenda  est  :  nee  enim  statutum  reale  sit,  an  personale  metiri 
oportel  a  ratione,  quae  a  conjugal!  forsan  qualitate  fuerit  ducta,  sed  ab  ipsa 
re,  quai  in  prohibitione  statuti  ceciderit.'  So  also  it  has  been  held,  that 
the  law  which  requires  that  the  testator  should  have  survived  the  execu- 
tion of  his  testament  will  control  the  disposition  of  property  situated  in  the 
country  where  that  law  prevails,  although  the  testament  is  made,  or  the 
testator  domiciled  in  a  place  Avhere  no  such  law  exists.  If  a  testator, 
whose  domicil  and  real  estate  were  both  ia  Normandy,  made  a  will  in 
some  other  place,  in  which  he  had  occasion  to  be  present,  but  where  the 
law  did  not  require  that  the  testator  should  survive  forty  days,  it  was  held, 
that  the  survivorship  was  essential  to  the  validity  of  the  testament,  so  far 
as  it  related  to  the  real  property  in  Normandy.  If  these  questions  arise 
on  the  power  to  dispose  of  movable  property  by  testament,  the  law  by 
which  ihey  are  decided  is  that  of  the  domicil  ;  "  Pour  les  meubles,  ils  sui- 
vent  la  loi  du  domicile,  et  il  ne  sauroit  jamais  y  avoir  de  choc  entre  diff6- 
rentes  coutumes,  en  sorte  qu'il  est  assez  inutile,  quant  aux  meubles,  d'agi- 
ter  si  le  statut,  qui  permet  de  tester,  ou  qui  le  defend,  est  personnel,  ou 
s'il  est  r6el."  See  also  Fcelix,  Conflit  des  Lois,  Revue  Etrang,  et  Fran^. 
Tom.  7,  1840,  ^  37,  p.  307  to  p.  312.  The  latter  author  says  in  this 
place  ;  "  Le  second  cas,  ou  le  statut  personnel  semble  devoir  pr6dominer 
sur  le  statut  r6el,  est  celui  de  la  succession  a  toute  la  fortune  d'un  indi- 
vidu,  soit  ab  intestat,  soit  par  testament.     Voici  les  arguments  invoques 


CH.  XI.]  WILLS   AND    TESTAMENTS.  795 

testaments  of  movable  property  and  of  immovable  pro- 
perty are  to  be  regulated,  in  order  to  give  them  validity, 


par  les  auteurs  qui,  dans  ces  deux  hypotheses,  pr6tendent  faire  regir  la 
succession  par  la  loi  personnelle  du  defunt.     Lorsque,  par  la  mort  d'un 
individu,  il  s'agit  de  succ6der  k  tous  ses  droits  actifs  et  passifs,  ^  touts  sa 
fortune  (universum  patrimonium,)  on  regarde  en  droit  cette  fortune  comma 
un  ensemble  (universitas  juris,)  sans  egard  aux  objets  particuliers  qui  la 
composent ;  et  cette  universalite  repr6sente  de  droit  le  defunt,  meme  avant 
I'appr^hension  faife  par  I'h^ritier.     L'heritier  succ6de  ensuite  dans  cette 
universalite,  et  c'est  alors  seulement  qu'il  represente  la  personne  du  de- 
funt.    L'universalit6  des  biens  du  defunt  forment  ainsi  la  continuation  de 
la  personne  de  ce  dernier,  on  doit,  pour  tout  ce  qui  concerne  la  succession 
a  cette  universality,  suivre  la  loi  de  son  domicile,  c'est  k  dire  son  statut 
personnel  ;  tous  les  objets  compris  dans  la  succession  sont  soumis  k  ce 
statut  personnel.     Ainsi  la  succession  d'un  Francais  est  r^gie  par  le  Code 
civil,  meme  a  l'6gard  des  immeubles  appartenant  au  defunt  et  situ6s  en 
Autriche,  et  on  ne  suit  pas  I'ordre  des  successions  etabli  par  le  Code 
Autrichien.     Cette  doctrine  a  6te  professee  par  un  grand  nombre  d'auteurs 
distingu6s ;  elle  I'a  et6  d'abord  par  Cujas,  relativement  a.  la  succession 
testamentaire  ;  ensuite  la  m^me  opinion  a  6t6  adoptee,  quant  a  la  succes- 
sion ab  intestat,  par  Puffendorf,  Bachov,  J.  H.  Boehmer,  G.  L.  Boehmer, 
Helfeld,  Gluck,  Hamm,  Meier,  par  MM.  Mittermaier,  Eichhorn,  Muhlen- 
bruch,  et  Grundler.     Toutefois,  quatre  des  auteurs  cit6s,  Puffendorf,  Hert, 
Gluck,  et  Hamm  n'admettent  le  principe  qu'avec  deux  restrictions  :  il  ne 
sera  pas  applicable,  lorsqu'il  existe  une  loi  prohibitive  au  lieu  de  la  situa- 
tion des  immeubles,  ou  lorsqu'une  qualit6  speciale  se  trouve  imprim^e  aux 
biens  ;    par  exemple,    s'ils  sont  ftodaux,  stemmatiques  ou  frapp6s  d'un 
fid^icommis.    En  faveur  de  cette  opinion  on  invoque,  outre  le  principe  que 
la  succession  reprsente  le  d6funt,  plusieurs  considerations  accessoires. 
D'apres  I'opinion  commune  des  auteurs,  la  succession  ab  intestat  repose 
sur  la  volont6  presumes  du  d6funt ;  le  defunt  n'ayant  connu,  en  r^gls 
generals,  d'aulre  loi  que  celle  du  lieu  ds  son  domicile,  on  doit  admettre 
qu'il  a  ^tendu  faire  passer  ses  immeubles  aux  parents  appeles  par  cette 
loi :  si  telle  n'avait  pas  6t6  son  intention,  il  en  aurait  dispose  par  testa- 
ment.    On  fait  remarquer  que  toutes  Iss  nations  admsttentchez  ellcs  I'exi- 
cution  des  testaments  consentis  par  un  etranger  dans  sa  patrie  et  dans  les 
formes  qui  y  sont  prescrites.     Ces  testaments  ns  sont  autrs  chose  que 
I'expression  formelle  de  la  volonte  du  defunt,  sanctionn6s  par  la  loi  civile 
de  sa  patrie  :  a  plus  forte  raison  devra-t-on  accorder  un  effet  seml)lable  k 
cette  loi  civile  lorsque,  sans  un  acts  du  defunt,  elle  prononce  seule.     On 
cits  sncors  les  inconv^nients  r^'sultant  do  la  division  des  patrimoines  en 
differentes  successions  particuli^res,  au  prejudice  des  heritiers  et  des  cr6- 
anciers  ;  enfin  on  fait  observer  que  la  chose  publique  est  sans  int6ret  dans 


796  CONFLICT   OF   LAWS.  [CH.  XI. 

let  us  proceed,  in  the  next  place,  to  the  consideration  of 
the  rules,  by  which  such  wills  and  testaments  are  to  be 
interpreted.  And,  in  the  first  place,  in  regard  to  wills 
and  testaments  of  personal  property.  In  such  cases, 
where  the  will  or  testament  is  made  in  the  place  of  the 
domicil  of  the  testator,  the  general  rule  of  the  common 
law  is,  that  it  is  to  be  construed  according  to  the  law  of 
the  place  of  his  domicil,  in  which  it  is  made.^  A  will, 
therefore,  made  of  personal  estate  in  England,  is  to  be 
construed  according  to  the  meaning  of  the  terms  used 


la  question,  parce  que  les  prohibitions,  les  charges  et  impositions  pesant 
sur  I'immeuble  peuvent  neanmoins  produire  leur  effet,  et  que,  du  reste, 
peu  importe  a  I'^tat  quelle  est  la  personne,  qui  herite  de  tel  immeuble 
D'autres  non  moins  respectables  n'admettent  I'application  du  statut  per- 
sonnel en  matiere  de  succession,  qu'en  ce  qui  concerne  les  meubles,  et 
ils  la  rejettent  par  rapport  aux  immeubles ;  ils  appliquent  a  ceux-ci  la 
loi  de  la  situation,  sans  distinguer  s'il  s'agit  de  succ6der  a  un  immeuble 
particulier  an  .\  l'nniversalit6  de  la  fortune  d'un  individu.  lis  admettent 
autant  de  successions  particulieres  qu'il  y  a  de  territoires  ou  sont  situ^s 
les  immeubles  provenant  du  defunt  (Quot  sunt  bona  diversis  territoriis 
obnoxia,  totidem  patrimonia  intelliguntur.)  Nous  citerons  Burgundus, 
Rodenburg,  Paul  Voet,  Jean  Voet,  Abraham  ^  Wesel,  Christin,  Sande, 
Gail,  Carpzov,  Wernher,  Mevius,  Struve,  Leyser  Huber,  Hommel,  Ber- 
ger,  Lauterbach,  Vattel,  Tittmann,  Danz,  Hauss,  MM.  Thibaut,  Story, 
et  Burge.  Aucune  legislation  positive  ne  s'est  expliqu6e  sur  la  question 
de  savoir,  si  c'est  la  loi  r^elle  ou  la  loi  personnelle,  qui  doit  i^gir  la  suc- 
cession ab  intestat.  Nous  pensons  qu'il  faut  appliquer  le  statut  de  la  situ- 
ation des  immeubles.  Le  premier  principe,  en  matiere  de  conflit  des  lois, 
c'est  que  les  lois  de  chaque  6tat  r^gissent  Icsbiens  situes  dansle  territoire  • 
il  n'est  nullement  6tabli  qu'une  convention  tacite  s'est  formee  entre  les 
nations  pour  I'application  de  la  loi  personnelle  au  cas  de  succession  dans 
l'universalit6  des  meubles  et  immeubles  d'un  individu  :  t^moin  la  diver- 
gence des  sentiments  des  auteurs.  Les  arguments  invoqu6es  en  faveur  de 
cette  application  sont  fond6s  en  partie  dans  le  droit  civil,  en  partie  dans 
I'avantage  commun  des  nations  ;  mais  on  ne  voit  pas  que  I'usage  des  na- 
tions ait  consacr6  cette  opinion."  See  also  Fcelix,  Id.  ^  27,  p.  216,  217, 
218  ;  Ante,  §  429  to  ^  444. 

^  Yates  u.  Thomson,  3  Clarke  &  Finell.  R.  544,  570;  Robertson  on 
Successions,  p.  99,  100,  191  to  197,  214,  255  ;  post,  §  490,  491. 


CH.  XI.]  WILLS    AND    TESTAMENTS.  797 

by  the  law  of  England ;  and  this  rule  equally  applies, 
whether  the  judicial  inquiry,  as  to  its  meaning  and  in- 
terpretation, arises  in  England,  or  in  any  other  country.^ 


1  Trotter  v.  Trotter,  4  Bligh,  (N.  S.)  502  ;  S.  C.  3  Wils.  &  Shaw,  R. 
407.  —  In  this  case  the  testator,  a  Scotchman,  domiciled  in  the  dominions 
of  England  in  India,  made  his  will  there  ;  he  being  possessed  of  Scotch 
heritable  bonds  as  well  as  of  personal  property  there.     The  will  was  inef- 
fectual to  carry  a  Scotch  heritage  according  to  the  law  of  Scotland  ;  and 
the  question  arose,  whether  his  heir  in  Scotland,  who  claimed  the  herita- 
ble bonds  as  heir,  was  also  entitled  to  share  in  the  movables,  as  a  legatee 
under  the  will,  without  bringing  in  the  heritable  bonds,  or  being  put  to 
his  election.     It  was  held,  that  the  will  as  to  its  terms   must  be  inter- 
preted according  to  the  law  of  England  ;  and  that  by  the  law  of  Eng- 
land the  terms  used  were  not  such  as  to  import  an  intention  to  convey  real 
estate  by  the  testator;  and,  therefore,  that  the  heir  was  entitled  to  the 
whole  heritable  bonds,  and  also  to  his  share  of  the  movable  property  under 
the  will.     On  that  occasion  the  Lord  Chancellor  (Lord  Lyndhurst)  said  : 
"  It  was  stated  at  the  bar,  and  I  see  by  the  papers  it  was  also  argued 
below,  that  in  cases  of  this  description,  it  is  not  unreasonable,  that  when 
any  technical  points  arise  in  the  construction  of  a  will  of  this  description, 
the  Court  of  Session  should  resort  to  the  opinion  of  lawyers  of  the  coun- 
try, where  the  will  or  instrument  was  executed,  but  that  this  applies  only 
to  technical  expressions  ;    that   where  a  will  is   expressed  in  ordinary 
language,  the  judges  of  the  Court  of  Scotland  are  as  competent  to  put  a 
proper  construction  upon  it  as  judges  or  lawyers  of  the  country  where  the 
will  was  executed.     But  the  judges  below  were  not  of  that  opinion  ;  and 
it  is  impossible,  as  it  appears  to  me,  that  such  an  opinion  can  be  reason- 
ably entertained.     A  will  must  be  interpreted  according  to  the  law  of  the 
country  where  it  is  made,  and  where  the  party  making  the  will  has  his 
domicil.     There  are  certain  rules  of  construction  adopted  in  the  Courts, 
and  the  expressions  which  are  made  use  of  in  a  will,  and  the  language  of 
a  will,  have  frequently  reference  to  those  rules  of  construction  ;  and  it 
would  be  productive,  therefore,  of  the  most  mischievous  consequences, 
and,  in  many  instances  defeat  the  intention  of  the  testator,  if  those  rules 
were  to  be   altogether  disregarded,  and  the  judges  of  a  foreign  Court, 
(which  it  may  be  considered  in  relation  to  the  will,)  without  reference  to 
that  knowledge  which  it  is  desirable  to  obtain  of  the  law  of  the  country  in 
which  the  will  was  made,  were  to  interpret  the  will  according  to  their 
own  rules  of  construction.     That  would  also  be   productive  of  another 
inconvenience,  namely,  that  the  will  might  have  a  construction  put  upon 
it  in  the  English  Courts  different  from  that  which  might  be  put  upon  it  in 
the  foreign  country.     It  appears  to  me,  that  there  is  no  solid  ground  for 
67* 


798  CONFLICT    OF   LAWS.  [CH.  XL 

Thus,  for  example,  if  the  question  should  arise,  whether 
the  terms  of  a  will  include  a  bequest  of  real  estate,  or 


the  objection  ;  but  that  where  a  will  is  executed  in  a  foreign  country  by  a 
person  having  his  domicil  in  that  country,  with  respect  to  that  person's 
property,  the  will  must  be  interpreted  according  to  the  law  of  the  country 
where  it  is  made.  It  must,  if  it  comes  into  question  in  any  proceeding, 
have  the  same  interpretation  put  upon  it  as  would  be  put  upon  it  in  any 
tribunal  of  the  country  where  it  was  made.  It  appears  to  me,  therefore, 
that  the  judges  were  perfectly  right  in  directing  the  opinion  to  be  taken  of 
English  lawyers  of  eminence,  with  respect  to  the  import  and  construction 
of  this  will  according  to  the  law  of  England.  The  main  question  that 
was  ultimately  put  to  the  learned  persons,  to  whom  I  have  referred,  is 
this,  —  '  Whether,  on  the  supposition  of  the  question  having  arisen  for 
trial  in  England,  the  heir  would  have  been  put  to  his  election  if  he  had 
claimed  money  secured  by  heritable  bond  in  Scotland,  as  well  as  his  share 
of  the  personal  estate  under  the  will.'  The  answer  is  in  these  terms, — 
'  Considering  heritable  bonds  in  Scotland  as  real  estates  to  which  the  heir 
at  law  is  entitled,  unless  they  are  conveyed  away  with  due  solemnity  by 
his  ancestor,  we  think  the  heir  at  law  would  be  entitled  in  this  case  to 
claim  them  without  being  put  to  his  election,  if  the  question  had  arisen  in 
a  court  of  justice  in  England.'  When  that  opinion  was  communicated  to 
the  Court  in  Scotland,  the  Court,  immediately  affirming  that  opinion, 
decided  in  favor  of  the  heir  at  law.  The  heir  at  law  was  undoubtedly 
entitled  to  take  the  real  estate,  —  that  is,  the  heritable  bond  ;  and  the  sole 
question  was,  whether,  when  he  came  in  to  claim  under  the  will  his  pro- 
portion of  the  personal  estate,  it  was  required  by  law,  that  he  should  be 
put  to  his  election,  that  is,  whether  he  should  take  the  one  or  the  other  ; 
whether  he  should  allow  the  real  estate  to  be  connected  with  the  personal 
so  as  to  form  one  mass  of  the  property,  and  the  whole  divided,  or  should 
take  the  real  estate,  and  give  up  the  personal  estate?  Whether  he  was 
obliged  or  not  to  do  this,  depended  entirely  on  this  consideration,  whether 
upon  the  face  of  the  will  there  was  sufRcient  to  manifest  a  clear  intention, 
that  the  testator  designed  by  his  will  to  dispose  of  his  real  estate  ;  be- 
cause, if  he  intended  to  dispose  of  his  real  estate,  although  he  had  not 
carried  that  intention  effectually  into  execution,  the  party  taking  under 
that  will  would  not  be  entitled  to  have  the  benefit  of  the  will,  and  at  the 
same  time  to  defeat  the  intention  of  the  testator.  The  question  was, 
therefore,  simply  a  question  of  construction.  Does  it  appear  upon  the  face 
of  the  will,  that  it  was  the  intention  of  the  testator  to  dispose  of  his  real 
estate,  that  is,  of  those  heritable  bonds?  Now,  the  rule  of  law  in  Eng- 
land with  respect  to  subjects  of  this  kind  is  well  ascertained  and  well  de- 
fined, and  it  is  this,  —  that  you  are  not  to  proceed  by  probability  or  by 
conjecture,  but  that  there  must  be  a  clear  and  manifest  expression  of  the 


CH.  XI.]  WILLS    AND    TESTAMENTS.  799 

show  on  the  part  of  the  testator  an  intention  to  be- 
queathe real  estate,  as  well  as  personal  estate,  the  ques- 
tion must  be  decided  according  to  the  law  of  the  place 
of  his  domicil,  and  where  the  will  was  made  j  and  the 
same  interpretation  must  be  put  upon  those  terms  in 
every  other  country,  which  would  be  put  upon  them  by 
the  law  of  that  domicil.^  So,  what  is  to  be  deemed 
"  real  estate "  in  the  sense  of  a  will,  devising  real 
estate  to  certain  persons,  must  be  decided  by  the  law 
of  the  domicil  of  the  testator.  Thus,  where  a  testator 
was  domiciled  in  Jamaica,  in  which  place  he  made  his 
will,  and  the  devise  was  in  these  words ;  "  I  give,  devise, 
and  bequeathe  one  moiety  of  the  rents,  issues,  and  profits 
of  my  estate  named  Islington  and  Cove's  Penn,  in  the 
parish  of  St.  Mary,  to  be  divided  equally  amongst  my 
grandchildren.  The  other  moiety  of  the  rents,  issues, 
and  profits  of  my  said  estate  and  Penn  I  give,  devise, 
and  bequeathe  to  my  son,  &c."  According  to  the  import 
of  the  words  "  my  estate,"  as  they  are  understood  and 
used  in  Jamaica,  not  only  the  land,  but  the  works,  build- 
ings, utensils,  slaves,  cattle,  and  stock  on  the  plantation 
would  be  included.  The  court  put  this  construction  on 
the  devise.^ 

§  479  J.  In  like  manner,  whether  the  words  of  a  will 
give  a  legacy,  or  create  a  trust,  in  favor  of  a  party, 
where  the  expressions  used  import  a  wish  or  desire,  or 


intention  on  the  face  of  the  will  to  include  that  property  which  is  not  pro- 
perly devised,  before  the  heir  can  be  put  to  his  election."  Ibid.  See  also 
Prince  v.  Deerhurst,  8  Sirti.  R.  279,  299,  300  ;  post,  ^  489;  Robertson  on 
Successions,  p.  189  to  197. 

1  Trotier  u.  Trotter,  4  Bligh,  R.    (N.  S.)  p.  502;   S.  C.  3  Wils.  & 
Shaw,  p.  407. 

2  Stewart  v.  Garnett,  3  Sim.  R.  298  ;  4  Burgc,  Comm.  on  Col.  and 
For.  Law,  Pt.  2,  ch.  12,  p.  591. 


800  CONFLICT    OP   LAWS.  [CH.  XL 

other  language  of  a  similar  sort  is  used,  must  be  decided 
by  the  law  of  the  place,  where  the  will  is  made,  and  the 
testator  has  his  domicil.^  So,  where  a  legacy  is  given 
in  terms  expressive  of  a  currency  in  use  in  different 
countries,  but  of  different  values  therein,  the  same  rule 
will  apply.  Thus,  for  example,  a  will  made  in  Ireland 
by  a  testator  domiciled  there,  giving  a  legacy  of  £1000, 
will  be  interpreted  to  be  a  legacy  of  ^£1000  Irish  cur- 
rency, and  payable  accordingly,  and  not  a  £1000  Eng- 
lish sterling  currency.^  So  legacies  are  deemed  pay- 
able according  to  the  law  of  the  country,  and  in  the 
currency  of  the  country,  where  the  will  is  made  and  the 
testator  is  domiciled.^ 

§  479  c.  In  like  manner  the  question,  whether  a 
legatee  by  the  terms  of  a  foreign  will  or  testament 
takes  an  estate  for  life,  or  in  fee,  is  to  be  decided  by 
the  law  of  the  place  where  the  will  is  made,  and  the 
testator  is  domiciled,  and  not  by  the  law  of  the  place 
where  the  controversy  arises,  or  the  testator  was  born.'' 
So  if  the  question  arises,  whether  it  is  competent  to 
make  a  particular  bequest  of  property,  the  validity  of 
it  must  be  decided  by  the  law  of  the  place  where  the 
will  or  testament  is  made,  and  the  testator  is  domiciled.^ 
So,  if  a  legacy  is  given  by  a  will  or  testament  to  a 


1  Pierson  r.  Garnett,  2  Bro.  Ch.  R.  38;  2  Story  on  Eq.  Jurisp.  ^  1068 
to  ^  1071. 

2  Id.  p.  47. 

3  Ibid. ;  Saunders  v.  Drake ;  2  Ath.  465 ;  Pierson  v,  Garnett,  3  Bro. 
Ch.  R.  39,  47  ;  Malcolm  v.  Martin,  3  Bro.  Ch.  R.  50  ;  Wallis  v.  Bright- 
well,  2  P.  Will.  88  ;  Lansdowne  v.  Lansdowne,  2  Bligh,  R.  60,  88,  89, 
95 ;  4  Burge,  Comm,  on  Col.  and  For.  Law,  Pt.  2,  ch.  12,  p.  595,  596  ; 
ante,  ^  259,  310  to  313. 

4  Brown  v.  Brown,  4  Wils.  &  Shaw,  28,  37  ;  post,  ^  490. 

5  Price  V.  Deerhurst,  8  Simons,  R.  279,  299,  300,  301  ;  2  Boullenois, 
Observ.  46,  p.  505  to  p.  508. 


CH.  XI.]  WILLS   AND    TESTAMENTS.  801 

party,  who  dies  in  the  lifetime  of  the  testator,  the  ques- 
tion, whether  it  is  an  ademption  of  the  legacy,  or 
whether  the  legacy  goes  to  his  personal  representatives, 
is  to  be  decided  by  the  law  where  the  will  or  testament 
is  made,  and  he  is  domiciled.^ 

§  479  d.  Another  illustration  may  arise  under  a  will, 
which  purports  to  direct  the  testator's  real  estate  to  be 
sold,  and  the  proceeds  to  be  applied  to  foreign  charities, 
which  devise  is  good  by  the  law  of  the  foreign  country, 
but  is  prohibited  by  the  law  of  the  testator's  domicil. 
In  such  a  case  the  devise  will  be  void,  because  it  is 
against  the  law  of  his  domicil.  This  was  held  in  a 
case,  where  a  testator  in  England  by  his  will  directed 
his  real  estate  to  be  sold,  and  the  produce  to  be  laid  out 
in  lands,  or  in  the  funds,  for  the  maintenance  of  a 
charity  in  Scotland.  On  that  occasion  the  Master  of 
the  Rolls  (Sir  Wm.  Grant)  said  ;  "  The  statute  (9  Geo. 
2,  ch.  36)  contains  no  express  words  prohibiting  a  be- 
quest of  money,  to  be  produced  by  the  sale  of  land,  to 
charitable  purposes ;  but  it  is  settled  by  construction, 
that  such  a  bequest  is  within  the  spirit  and  meaning  of 
the  law ;  and  it  is  clear,  that  no  charity  in  England,  not 
within  the  exception  of  the  statute,  could  have  derived 
any  benefit  from  the  produce  of  the  real  estate.  The 
question,  then,  is,  whether  such  produce  may  be  given 
to  what,  in  contemplation  of  the  English  law,  is  for  a 
charitable  purpose,  when  that  purpose  is  to  be  carried 
into  execution  in  another  country.  The  validity  of 
every  disposition  of  real  estate  must  depend  upon  the 
law  of  the  country  in  which  that  estate  is  situated. 


1  Anstruther  v.  Chalmcr,  2  Sim.  R.  1  ;  Thornton  v.  Curling,  8  Sim.R. 
310  ;  S.  C.  2  Addams,  Eccles.  R.  6,  10  to  25  ;  post,  ^  491. 


802  CONFLICT    OF   LAWS.  [CH.  XL 

The  subject  of  this  statute  is  real  estate  in  England. 
The  owners  of  such  property  are  disabled  from  disposing 
of  it  to  any  charitable  use,  except  by  deed,  executed 
twelve  months  before  the  death  of  the  owner,  &c.,  to 
take  effect  from  the  execution.  The  words  are  per- 
fectly general,  ^  any  charitable  use  whatsoever ; '  and  the 
object  could  not  be  to  treat  English  charities  less  favor- 
ably than  charities  to  take  effect  for  the  benefit  of  other 
countries.  It  would  be  somewhat  incongruous  to  refuse 
to  permit  such  a  disposition  for  the  most  laudable  and 
meritorious  charitable  institution  in  England  ;  but  if  the 
party  chose  to  carry  his  benevolent  intention  beyond 
England,  to  permit  him  to  do  so,  to  the  effect  of  disin- 
heriting his  heir  in  his  last  moments.  The  disinheriting 
of  the  lawful  heirs  by  languishing  or  dying  persons, 
which  is  treated  by  the  statute  as  a  mischief,  cannot  be 
less  so,  when  the  effect  is  to  carry  the  property  out  of 
England.  Therefore,  neither  the  words  of  this  statute, 
nor  the  presumable  intention,  warrant  me  in  declaring, 
that  it  is  to  be  confined  to  charitable  purposes  to  be 
carried  into  execution  in  England.  The  statute  not 
containing  an  exception  in  favor  of  the  universities  of 
Scotland,  as  it  does  with  regard  to  the  universities  of 
England,!  must  consider  this  as  a  charitable  disposition, 
by  which  nothing  that  is  the  produce  of  the  testator's 
real  estate  can  pass."  ^ 

§  479  c.  The  same  rule  will  apply  to  the  ascertain- 
ment of  the  persons,  who  are  to  take  under  a  will  or  tes- 
tament, when  it  is  made  by  words  designating  a  parti- 
cular class   or   description  of  persons.     "Who  are  the 


1  Curtis  V.  HuUon,  14  Ves.  537,511.     See  also  3  Peters,  R.  Appx. 
p.  501  to  503. 


CH.  XI.]  WILLS    AND    TESTAMENTS.  803 

proper  persons  entitled  to  take  under  the  designatw  im-- 
sonanim,  is  a  point  to  be  ascertained  by  the  law  of  the 
place  where  the  will  is  made,  and  the  testator  is  domi- 
ciled. Thus,  for  example,  if  a  testator  should  bequeathe 
his  personal  estate  to  his  "  heir  at  law,"  who  is  the  per- 
son entitled  to  take  under  that  description,  will  depend 
upon  the  law  of  his  domicil.  If  domiciled  in  England, 
it  will  be  the  eldest  son ;  if  domiciled  in  most  of  the 
States  of  America,  it  will  be  all  his  children.^     So,  if  a 


1  Harrison  v.  Nixon,  9  Peters,  R.  483,504. — On  tliis  occasion  the 
Court  said  ;  "  No  one  can  doubt,  if  a  testator,  born  and  domiciled  in  Eng- 
land during  his  whole  life,  should,  by  his  will,  give  his  personal  estate  to 
his  heir  at  law,  that  the  descriptio  persona3  would  have  reference  to  and  be 
governed  by  the  import  of  the  terms  in  the  sense  of  the  laws  of  England. 
The  import  of  them  might  be  very  different,  if  the  testator  were  born  and 
domiciled  in  France,  in  Louisiana,  in  Pennsylvania,  or  in  Massachusetts. 
In  short,  a  will  of  personalty  speaks  according  to  the  laws  of  the  testa- 
tor's domicil,  where  there  are  no  other  circumstances  to  control  their  ap- 
plication ;  and  to  raise  the  question,  what  the  testator  means,  we  must  first 
ascertain,  what  was  his  domicil,  and  whether  he  had  reference  to  the  laws 
of  that  place,  or  to  the  laws  of  any  foreign  country.     Now,  the  very  gist 
of  the  present  controversy  turns  upon  the  point,  who  were  the  person,  or 
persons,  intended  to  be  designated  by  the  testator,  under  the  appellation  of 
'  heir  at  law.'     If,  at  the  time  of  making  his  will,  and  at  his  death,  he  was 
domiciled   in  England,  and  had  a  reference  to  its  laws,  the  designation 
might  indicate  a  very  different  person,  or  persons,  from  what  might  be  the 
case,  (we  do  not  say,  what  is  the  case,)  if,  at  the  time  of  making  his  will, 
and  of  his  death,  he  was  domiciled  in  Pennsylvania.     In  order  to  raise 
the  question  of  the  true  interpretation  and  designation,  it  seems  to  us  in- 
dispensable that  the  country,  by  whose  laws  his  will  is  to  be  interpreted, 
should  be  first  ascertained  ;  and  then  the  inquiry  is  naturally  presented, 
what  the  provisions  of  those  laws  are."     Mr.  Burge  has  put  a  number  of 
cases  from  the  foreign  law  on  the  same  subject.     He  says  ;  "  The  legal 
effect  of  the  expression,  'lawful  heirs,'  will  not  be  controlled  by  words, 
which  import  an  equality  of  distribution  amongst  the  heirs  ;  but  those 
words  will  be  understood  as  referring  to  the  equality,  which  is  consistent 
with,  and  recognized  by  that  law,  which  the  testator  is  presumed  to  have 
invoked.     The  institution  of  heirs  was  thus  expressed  ;  '  Fratrum  et  soro- 
rum  filios  ac  nepotes  hicredes  legitimes  ex  acquis  partibus.'  (Voet,  lib.  28, 
tit.  5,  n.  17.)     If  the  whole  inheritance  were  to  be  divided  amongst  those 


804  CONFLICT   OF   LAWS.  [CH.   XL 

person  domiciled  in  Holland  should  bequeathe  his  pro- 
perty to  the  "  male  children "  of  certain  persons,  and 
the  question  should  arise,  as  well  it  might,  whether  by 
"  male  children "  be  meant  male  descendants,  that  is, 
descendants  claiming  through  males  only,  the  question 
would  be  decided  by  the  interpretation  put  upon  those 
words  by  the  law  of  Holland. 


heirs  in  equal  parts,  the  qualification  of  legitimus  hseres  would  be  dis- 
regarded, because,  according  to  the  order  of  succession  established  by 
law,  the  grandsons  of  one  brother  succeeding  with  the  sons  of  another  do 
not  take  per  capita,  but  per  stirpes.  The  equality,  therefore,  to  be  ob- 
served in  the  distribution,  and  which  must  be  presumed  to  have  been  that 
contemplated  by  the  testator,  is  that,  which  the  law  admits,  namely,  an 
equality  between  the  stirpes,  and  not  between  the  individuals.  (Neostad, 
Decis.  33.)  A  case  arose  in  the  court  at  Brabant,  of  a  father  domiciled  in 
Brabant,  who  had,  in  the  institution  of  his  son,  desired  him  to  allow  that, 
which  he  had  left  him,  to  go  to  his  lawful  children.  It  was  decided,  that 
the  grandfather's  estate  would  devolve  on  those  children  only,  who  would 
take  according  to  the  law  of  Brabant  in  the  case  of  intestacy,  namely,  the 
children  of  the  first,  to  the  exclusion  of  those  of  a  second  marriage. 
(Stockmans,  Curiae  Brab.  Decis.  27.)  Under  an  institution  by  the  de- 
scription of  '  brothers,'  brothers  of  the  whole  blood  only  will  take,  if  ac- 
cording to  the  law  in  the  place  of  the  lex  loci  domicilii,  the  children  of  the 
father's  or  mother's  side  only  are  excluded  from  the  succession.  (Chris- 
tin  ad  Leg.  Mech.  tit.  16,  art.  7,  n.  5,  6  ;  Voet,  lib.  28,  tit.  5,  n.  18;  Ro- 
denb.  de  Jure,  Quod  Ori,  de  Stat.  Divers,  tit.  3,  c.  2,  n.  6,  p.  135  ;  Some- 
len  de  Reprajs.  c.  5,  n.  4.)  If  a  testator  institute  as  his  heirs  those  vihom 
he  calls  proximi,  without  using  any  expression  pointing  to  those  who 
would  by  law  succeed  to  him  in  case  of  intestacy,  and  he  leaves  no  child- 
ren, it  is  doubtful  who  are  entitled  to  the  succession,  whether  those 
who  would  take  according  to  the  law  of  the  place  of  his  domicil,  or  those 
who  were  really  and  naturally  the  nearest  to  the  testator  in  blood,  although 
according  to  that  law  they  could  not  be  his  heirs.  Thus,  if  the  testator 
were  domiciled  in  a  country  where  the  relations  of  the  deceased  mother 
succeed  in  preference  to  the  surviving  father,  the  latter  is  the  nearest  in 
blood  to  the  deceased,  although  he  is  not  nearest  in  the  order  of  succession. 
It  seems,  that  the  term  proximus  would  receive  its  natural  signification, 
and  consequently  the  father  as  the  nearest  in  blood  would  succeed,  and  not 
the  descendant  in  the  maternal  line.  (Voet,  lib.  28,  tit.  5,n.  19,  and  lib.  36, 
lit.  1,  n.  25  ;   Someren,  de  Reprees.  c.  6.)     But  it  is  said,  that  this  con- 


CH.   XI.]  WILLS    AND    TESTAMENTS.  805 

§  479/.  But  the  question  may  be  asked  in  these  and 
the  like  cases,  what  is  to  be  the  rule  of  construction,  if 


struction  is  made  to  depend  oo  the  degree  in  which  the  law  of  succession 
deviates  from  the  natural  sense  of  the  word  proximus.  And  where  in 
cases  of  intestacy  some  of  the  nearest  are  admitted  to  the  succession  with 
some  more  remote  in  blood,  the  construction  would  be  according  to  the 
legal  sense.  If  therefore  a  testator,  instituting  his  wife  as  his  heir,  should 
direct,  that  the  inheritance  after  his  death  should  revert  to  the  nearest, 
then  according  to  the  jus  Scabinicum,  [Sen-Cons-Trebellianicum,]  the 
father  would  be  entitled  to  one  half,  and  all  the  brothers  to  the  other  half.  ^ 
(lb.  Sand6,  Decis.  Fris.  lib.  4,  tit.  5,  def.  6.)  If  the  testator  has  called 
to  the  succession  those  who  are  nearest  to  him  in  case  of  intestacy,  re- 
course must  be  had,  not  to  the  laws  of  the  different  countries,  in  which  his 
immovable  property  is  situated,  to  decide,  who  are  the  persons  entitled  to 
succeed,  but  to  the  lex  loci  domicilii.  And  then  it  may  happen,  that  those 
would  succeed,  who  will  not  be  the  nearest  in  blood.  (Sand.  Decis.  Fris. 
lib.  4,  tit.  5,  def.  6,  8;  Voet,  lib.  36,  tit.  1,  n.  25,  lib.  28,  tit.  5,  n.  20; 
IManlica,  de  Conj.  ult.  Volunt.  lib.  8,  tit.  14,  n.  10;  Van  Leeuwen, 
Cens.  For.  part  1,  lib.  3,  c.  7,  n.  19;  Neostad,  decis.  35;  Jul.  Clarus.  ^ 
Testam.  qua^st.  76,  n.  13  ;  Someren,  de  Reprses.  c.  5,  n.  16  ;  ante.  Vol.  2, 
p.  856.)  In  a  bequest  of  a  pecuniary  legacy,  where  the  will  affords  no 
direct  evidence  of  the  currency,  in  which  the  testator  intended  it  to  be 
paid,  his  greater  familiarity  with  the  currency  of  the  country,  in  which  he 
is  domiciled,  than  with  that  of  any  other  place,  justifies  the  presumption, 
that  he  has  in  view  that  currency,  when  he  expresses  no  other  currency, 
in  which  his  bequest  is  to  be  paid.  The  father  of  a  family,  who  was  do- 
miciled in  a  village  in  Peyrouse,  in  Italy,  was  on  a  visit  to  Ancona  on  busi- 
ness. He  made  his  will  in  the  latter  place,  and  gave  a  legacy  to  one  of 
his  daughters  of  five  hundred  florins.  Florins  were  of  less  value  at  An- 
cona than  at  Peyrouse,  and  the  question  raised  was,  whether  the  legacy 
should  be  paid  according  to  the  value  of  the  florins  at  Ancona,  or  at  Pey- 
rouse ;  and  it  was  determined  it  ought  to  be  paid  according  to  the  value  at 
Peyrouse,  the  place  of  the  testator's  domicil.  Where  a  legacy  consists  of 
a  certain  number  of  modii  of  corn,  Hertius  says,  that  the  modii  ought  to  be 
according  to  the  measure  of  the  place  of  the  testator's  domicil,  and  not  ac- 
cording to  that  of  the  place  where  the  testament  was  made.  So,  if  a  tes- 
tator, having  lands  in  different  places,  devise  a  thousand  acres  without  any 
other  expression,  such  a  devise  must  be  understood  according  to  the  mea- 
surement prevailing  in  the  place  of  his  domicil."  4  Burge,  Comm.  on  Col. 
and  For.  Law,  Pt.  2,  ch.  12,  p.  591  to  594.  See  also  2  Burge,  Comm. 
Pt.  2,  ch.  9,  p.  855  to  860  ;  ante,  §  271,  271  a,  note  ;  post,  §  484  ;  Sand. 
Decis.  Frisic.  Lib.  4,  tit.  8,  Defin.  7,  p.  194. 

CONFL.  68 


806  CONFLICT   OF   LAWS.  [CH.  XI. 

the  will  or  testament  is  made  by  the  party  in  the  place 
of  his  domicil;  hut  he  is  in  fact  a  native  of  another 
country ;  or  if  the  will  or  testament  is  made  in  a  coun- 
try, of  which  the  party  is  a  native,  and  according  to 
the  forms  of  law  in  that  country,  and  yet  at  the  time 
his  actual  domicil  is  in  another  country,  by  whose  laws 
the  will  or  testament  so  made  is  equally  good.  The 
answer  to  both  questions  is  the  same.  The  law  of  the 
place  of  his  actual  domicil.  Thus,  for  example,  where 
a  native  of  Scotland  domiciled  in  England,  having  per- 
sonal property  only,  executed  during  a  visit  to  Scotland, 
and  deposited  a  will  there,  prepared  in  the  Scotch  form, 
and  died  in  England ;  it  was  held,  that  the  will  was  to 
be  construed  according  to  the  English  law.^ 


1  Anstruther  v.  Chalmer,  5  Sim.  R.  1  ;  Harrison  u.'Nison,  9  Peters  R. 
483,  504,  505,  note.  — Mr.  Burge  on  this  subject  says  ;  "  The  law  of  the 
place  of  domicil  in  many  cases  affords  the  rule  of  construction,  when  the 
testator  has  used  expressions,  which  are  either  ambiguous  or  of  different 
significations  in  different  countries.  Thus,  if  a  testator  does  not  institute 
his  heirs  by  name,  but  by  the  description  of  those  who  would  succeed  to 
his  estate  in  case  he  had  died  intestate,  and  the  rules  of  succession,  where 
his  real  or  immovable  property  is  situated,  are  different  from  those  which 
prevail  in  the  place  of  his  domicil,  or  in  that  in  which  he  made  his  will,  or 
in  that  where  the  judicial  tribunal  is,  which  adjudicates  on  the  will,  the 
laws  of  succession,  which  prevail  in  the  place  of  his  domicil,  are  those 
which  would  be  adopted.  And  the  more  general  opinion  is,  that  even  with 
respect  to  the  succession  to  real  or  immovable  property,  the  laws  of  suc- 
cession in  the  place  of  domicil,  and  not  those  in  loco  rei  sitae  prevail.  The 
ground,  on  which  tliis  rule  rests,  is  that,  as  it  becomes  necessary  to  ascer- 
tain the  sense,  in  which  the  testator  has  used  the  expression,  and  what 
laws  of  succession  he  contemplated,  it  is  presumed,  that  they  were  those 
of  the  country  in  which  he  was  domiciled,  because  it  must  be  supposed  he 
was  familiar  with  those  laws.  There  are  grounds  for  presuming  he  was 
acquainted  with  them  ;  but  there  exist  no  grounds  for  presuming  him  to  be 
acquainted  with  any  other  laws  of  succession.  In  affixing  the  sense,  in 
which  he  has  used  certain  words,  terms,  or  phrases,  he  is  presumed  to 
have  adopted  that,  which  prevailed  in  the  place   of  his  domicil.     It  has 


CH.  XI.]  WILLS    AND    TESTAMENTS.  807 

§  479  g.  Another  question  may  also  be  propounded. 
Suppose  at  the  time  of  the  making  of  a  "will  or  testa- 
ment, the  testator  is  domiciled  in  the  place  "where  it 
is  made,  and  he  afterwards  removes  to  another  place, 
where  he  is  domiciled  at  his  death ;  does  such  removal 
change  the  rule  of  construction,  so  that,  if  there  is  a  dif- 
ference between  the  law  of  the  original  domicil  and  that 
of  the  new  domicil,  as  to  the  interpretation  of  the  terms, 
the  law  of  the  new  domicil  is  to  prevail  ?  Or,  does  the 
interpretation  remain,  as  it  was  by  the  law  of  the  ori- 
ginal domicil  ?  This  question  does  not  seem  to  have 
undergone  any  absolute  and  positive  decision  in  the 
courts  acting  under  the  common  law.^  [It  has  been 
held  however,  in  such  case,  that  unless  the  will  was 
executed  according  to  the  law  of  the  person's  last  do- 
micil, and  the  place  of  his  death,  it  would  not  be  valid 
althousfh  made  according:  to  the  laws  of  the  testator's 
domicil  at  the  time  it  was  made.^] 

§  479  li.  The  same  rules  of  construction  will  gene- 
rally apply  to  wills  and  testaments  of  immovable  pro- 
perty ;  unless,  indeed,  it  can  be  clearly  gathered  from 
the  terms  used  in  the    will,  that  the  testator  had  in 


been  sometimes  said,  that  they  ought  to  be  understood  in  the  sense  in 
which  they  are  accustomed  to  be  used  in  the  place  where  the  "will  or  con- 
tract was  made.  But  it  would  be  impossible  to  consider  this  as  a  general 
rule  ;  for  the  residence  of  the  party  in  the  place  may  have  been  for  so  short 
a  time  as  to  negative  the  presumption,  that  he  was  even  acquainted  with 
that  sense."  4  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  12,  p. 
590,  591.  See  also  2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  9, 
p.  855,  856,  857. 

1  It  was  alluded  to,  and  reserved  for  consideration  in  Harrison  v.  Nix- 
on, 9  Peters,  R.  205,  483.  See  ante,  ^M'i;  4  Burge,  Comm.  on  Col. 
and  For.  Law,  Pt.  2,  ch.  4,  §  5,  p.  109;  Yates  u.  Thomson,  3  Clarke 
and  Finell.  544,  583  to  589. 

2  Nat  V.  Coon,  10  Missouri,  R.  543. 


808  CONFLICT    OF   LAWS.  [CH.  XL 

view  the  law  of  the  place  of  the  situs,  or  used  other  lan- 
guage, which  necessarily  referred  to  the  usages  and 
customs  or  language  appropriate  only  to  that  situs} 
"  Thus,"  (to  borrow  an  illustration  from  Mr.  Burge,) 
"  in  case  the  limitation  of  a  deed  or  will  were  made  in 
England,  in  favor  of  the  heir  of  A.,  a  person  who  had 
no  children,  and  the  settler  or  testator  has  property  in 
England,  Jamaica,  and  British  Guiana,  if  the  construction 
of  the  term,  heir,  was  to  be  in  conformity  with  the  law 
of  England,  the  father  of  A.  would  take ;  if  according  to 
the  law  of  Jamaica,  the  elder  brother ;  and  if  according 
to  the  law  of  British  Guiana,  his  father,  brothers,  and 
sisters,  would  take  his  immovable  property.  It  is  not 
to  be  presumed,  that  he  used  the  expression  in  three 
different  senses,  or  that  he  adopted  the  legal  import 
given  to  it  by  the  law  of  the  one  place,  rather  than 
that  given  to  it  by  the  law  of  either  of  the  other  two 
places.  But  if  his  domicil  were  in  England,  there  is 
the  presumption,  that  he  was  acquainted  with  the  sense 
attached  to  it  by  the  law  of  England,  and  that  he  used 
it  in  this  sense."  ^  So  if  a  testator  should  devise  his 
real  property  to  his  next  of  kin,  who  would  be  entitled, 
would  depend  upon  the  construction  given  to  the  words 
by  the  law  of  his  domicil.^ 

§  479  i.  Foreign  jurists  have  discussed  this  subject 
on  various  occasions.^  Boullenois  says;  When  the 
question  is  respecting  the  interpretation  of  clauses 
expressed  in  a  contract,  or  a  testament,  it  is  ordinarily 


1  Trotter  v.  Trotter,  3  Wils.  &  Shaw,  407  ;  S.  C.  4  Bligh,  R.  (N.  S.) 
502,  505;  2  Surge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  9,  p,  857, 
858. 

2  2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  9,  p.  858. 

3  Ibid. 

4  See  Sand.  Decis.  Frisic.  Lib.  4,  tit.  8,  Defin.  7,  p.  194. 


CII.    XI.]  WILLS   AND    TESTAMENTS.  809 

the  circumstances  of  the  case,  which  are  to  decide  it.  In 
effect,  if  we  sometimes  find  clauses  or  dispositions  in  con- 
tracts or  testaments,  which,  from  not  being  sufficiently 
developed,  leave  some  uncertainty  of  knowing,  whether 
they  are  to  be  understood  according  to  the  law  of  the 
place,  where  the  acts  are  executed,  or  according  to  the 
law  of  the  place  where  the  goods  are  situated,  or  accord- 
ing to  the  law  of  the  domicil  of  one  or  other  of  the  con- 
tracting parties,  or  finally,  according  to  some  other  law. 
After  citing  the  opinions  of  other  jurists,  he  declares  his 
own  opinion  to  be,  that  the  law  of  the  place,  where  the 
act  is  executed,  does  not  always  furnish  the  proper  rule 
of  interpretation  in  all  cases ;  ^  but  that  the  only  rule, 
which  can  be  prescribed,  is  that  of  determining,  accord- 
ing to  the  different  circumstances  belonging  to  each 
case.  These  circumstances  will  sometimes  compel  us 
to  follow  the  law  of  the  place  of  the  contract,  or  testa- 
ment, sometimes  that  of  the  situs  rei,  sometimes  that  of 
the  domicil  of  the  party,  and  sometimes  the  place, 
where  the  payment  or  performance  is  to  be.  He  adds, 
that  he  finds  no  doctrine  more  reasonable  than  that, 
which  Dumoulin  has  laid  down  upon  this  subject.- 


1  2  BouUenois,  Observ.  46,  p.  489,  490. 

3  2  BouUenois,  Observ.  46,  p.  491,  503  to  518  ;  Id.  p.  537,  538.  —Mr. 
Burge  has  cited  from  2  BouUenois,  Observ.  46,  p.  534  et  seq.  a  passage 
illustrating  Boullenois's  opinion.  "  The  terms,"  (says  Mr.  Burge,)  "  in 
which  the  contract  is  expressed,  may  receive  a  construction,  according  to 
the  law  or  usage  of  the  place  where  the  contract  is  made,  different  from 
that  which  is  given  to  them  by  the  law  of  the  situs.  If,  by  adopting  the 
one  sense,  the  contract  would  be  brought  within  the  prohibition  of  the  law 
of  the  situs,  that  construction  ought  to  be  rejected.  But  if  this  would  not 
be  the  consequence,  and  the  adoption  of  either  meaning  would  not  alford  a 
ground  to  prevent  the  contract  from  being  completed  by  the  law  of  the 
situs,  it  has  been  a  question,  whether  the  construction  given  by  the  law  or 
usage  of  the  situs,  or  that  given  by  the  law  of  the  place  where  the  con- 

68* 


810  CONFLICT    OF   LAWS.  [CH.  XL 

§  479  Jc.  We  have  already  had  occasion  ia  part,  to 


tract  was  made,  ought  to  prevail.  Thus,  in  some  countries  the  limitation 
by  gift  or  devise  to  a  person,  and  '  si  sine  liberis  discesserit '  to  another, 
operates  as  a  substitution.  The  children,  '  posiii  in  conditione,'  are  also 
considered  as  '  positi  in  dispositione,'  and  are  entitled  to  take.  Such  was 
the  law  of  Toulouse.  But  under  the  couturae  of  Paris  the  expression,  '  si 
sine  liberis,'  imported  only  a  condition,  and  consequently,  if  there  were  no 
failure  of  children,  there  was  no  substitution.  The  following  case  oc- 
curred, on  which  M.  Boullenois  gave  his  opinion  :  The  Comte  de  R.,  do- 
miciled in  Languedoc,  made  a  settlement  on  the  marriage  of  his  son,  who 
had  resided  in  Paris  many  years,  and  the  lady  with  whom  he  married  was 
a  native  of  and  domiciled  in  Paris.     The  Comte  executed  a  general  power 

of  attorney  to  the  Bishop  of to  arrange  the  marriage  settlement.     By 

this  settlement  he  gave  to  his  son  a  moiety  of  all  his  estate,  movable  and 
immovable,  then  belonging  to  him,  or,  which  should  belong  to  him  on  the 
day  of  his  death.  '  Sous  la  condition  que,  si  le  futur  6poux  decede  sans 
enfans  males,  n6s  de  ce  mariage,  la  moiti6  des  biens  i  lui  presentement 
donnas,  retournera  a  I'ain^  de  ses  freres,  ou  a  I'aine  des  enfants  males 
du  dit  ain6 ;  apres  toutes  fois  que  les  conventions  de  la  dite  Demoiselle 
future  epouse  auront  et6  payees  et  acquittees,  et  que  deduction  aura  6te 
faite  de  la  legitime  des  filles.'  There  were  issue  of  the  marriage  a  son 
and  daughter.  The  real  property  was  situated  in  Toulouse.  The  son 
claimed  it,  insisting  that  his  father  had  created  a  substitution,  and  that  he 
took  as  a  substitute.  The  daughter  contended,  that  no  substitution  was 
created,  that  the  condition  had  failed,  and,  that  consequently,  the  father 
having  died  without  making  any  disposition,  she  was  entitled  with  her 
brother  as  one  of  the  heirs  ab  intestato.  The  opinion  given  by  M.  Boul- 
lenois was,  that  the  import  of  the  expression,  given  by  the  law  of  Paris, 
where  the  contract  was  made,  and  where  two  of  the  parties  to  it  were  do- 
miciled, and  the  donor  was  present  by  his  attorney,  must  prevail.  This 
opinion  was  confirmed  by  sentence  des  Requetes  du  Palais  of  the  21st  of 
August,  1734,  in  favor  of  the  daughter.  But  this  sentence  was  reversed 
on  appeal,  and  the  decision  was  given  in  favor  of  the  son.  There  is  great 
force  in  the  arguments,  by  which  this  learned  jurist  maintains  his  opinion. 
The  principal  ground,  on  which  the  decision  proceeded,  was,  that  the  do- 
micil  of  the  father,  the  donor,  was  in  Toulouse,  and  that  it  must  be  pre- 
sumed he  contemplated  the  law,  with  which  he  was  acquainted,  rather  than 
that  of  Paris,  with  which  he  might  be  unacquainted,  and,  that  in  donations 
the  intention  of  the  donor  is  principally  to  be  considered,  since  the  part  of 
the  donee  is  confined  to  the  acceptance  of  the  donation.  But,  in  the  pre- 
sent case,  this  consideration  loses  much  of  the  weight,  to  which  it  might 
otherwise  be  entitled,  because  the  donor  had  granted  a  general  power  of 
attorney  to  a  person  resident  in  Paris  to  arrange  the  settlement,  and  had 


CH.  XI.]  WILLS   AND    TESTAMENTS.  811 

refer  to  the  opinions  of  Dumoulin  on  this  subject.^  He 
reproves  the  doctrine  maintained  by  many  jurists,  that 
the  law  and  custom  of  the  place,  where  a  contract  is 
made  are  to  govern  the  contract  in  all  cases.  Et  adver- 
tcndum,  quod  Dodores  pcssime  inlclligunt,  L.  si  fundus  de 
evidl ;  Quia  'pidcmt  ruditer  et  indistinde,  quod  deheat  ihi 
inspici  locus  et  consuetudo,  iibi  fit  contractus,  et  sic  jus  in 
loco  contractus.  Quod  estfalsum;  qidnimojus  est  in  tacita 
et  verisimiUter  mente  contrahentium.  And  he  explains 
himself  thus.  Aut  satutum  loquitur  de  his,  quce  conceniunt 
nudani  ordinationem  vcl  solemnitatem  actus,  et  semper  inspi- 
ciiur  statutmn  vcl  consuetudo,  iihi  actus  celehratur,  sive  in 
contradihus,  sive  in  judiciis,  sive  in  testamentis,  sive  in  in- 
strumentis,  aut  aliis  conficiendis?     Aut  statutum  loquitur  de 


not  prescribed  the  terms  or  conditions  it  should  contain.  It  was  not  in 
this  case  insisted,  nor  is  it  the  doctrine  of  jurists,  that  the  situs  of  tiie  pro- 
perty requires  the  application  of  its  law  to  determine  the  legal  import  of 
any  expression  in  the  contract.  The  text  of  the  civil  law  is,  that  '  In  sti- 
puiationibus,  et  in  caeteris  contractibus,  id  sequimur,  quod  actum  est  ;  et  si 
non  pateat  quod  actum  est,  erit  consequens,  ut  id  sequamur,  quod  in  re- 
gione  in  qu^  actum  est,  frequentatur.'  It  has  been  justly  considered,  that 
this  rule  is  too  general  ;  for  that  if  it  were  universally  followed,  the  in- 
tentions of  the  contracting  parties  must  be  frequently  defeated.  It  has 
been  seen  in  the  passage  already  cited,  that  it  was  condemned  by  Du- 
moulin. In  his  opinion,  and  he  is  followed  by  Boullenois,  the  interpreta- 
tion of  expressions  in  a  contract  must  depend,  not  on  the  place,  where  it  is 
made,  but  on  those  other  circumstances,  from  which  the  will  or  intention 
of  the  parties  may  be  inferred.  Generally,  the  interpretation  which  it 
would  receive  in  the  place  of  their  domicil,  is  that  which,  it  is  most  pro- 
bable, will  be  conformable  to  their  intention."  2  Burge,  Comm.  on  Col. 
and  For,  Law,  Pt.  2,  ch.  9,  p.  855  to  857;  2  Boullenois,  Observ.  46,  p. 
518  to  533  ;  ante,  §  275.  Boullenois  gives  other  illustrations  of  his  doc- 
trine. 2  Boullenois,  Observ.  46,  p.  495  to  p.  518.  Bouhier  seems  to 
hold  a  similar  opinion.  Bouhier,  Cout.  de  Bourg.  ch.  21,  n.  220,  221, 
222. 

1  Ante,  ^  274,  441. 

2  Molin.    Opera,  Tom.  3,  Comm.  in  Cod.  Lib.  1,  tit.  1,  p.  554,  edit. 
1681  ;  ante,  ^  260,  274,  441  ;  2  Boullenois,  Observ.  46,  p.  495. 


812  CONFLICT    OF   LAWS.  [CH.  XL 

Ms,  qucc  meritiim  scilicet  caiisce  vel  decisionem  concermmt  ; 
el  tunc  aid  in  his,  qiice  pendent  a  voluntate  partium,  vel  per 
eas  immutari  possiint,  et  tunc  insjnciiintur,  circumstantice  vo- 
luntatis qiiarum,  una  est  statutum  loci,  in  quo  contrahitw^  et 
domicilii  contrahentium  antiqui  vel  recentis,  et  similes  circum- 
stantice} 

§  479  I.  Hertius  lays  down  the  rule,  that  the  words 
of  a  testator  are  to  be  especially  interpreted  accord- 
ing to  the  custom  of  the  place,  where  the  testator  had 
his  origin  or  domicil.  Hinc  jwisconsiilti  verla  testatoris 
prcBcipu^  interpretantur  secundum  loci  consuetudinem,  uU 
testator  originem  vel  domicilium  haheat?  And  he  illus- 
trates it  by  the  case  of  a  bequest  of  so  many  measures 
of  wheat,  or  so  many  acres  of  land,  where  the  question 
arises  as  to  the  quantity  of  the  measures  or  of  the 
acres,  whether  to  be  understood  according  to  the  Lex 
loci  of  the  testament,  or  the  Lex  domicilii  of  the  testator.^ 
The  like  doctrine  is  adopted  by  John  Voet,  by  Stock- 
mans,  by  Christinaeus,  by  Rodenburg,  and  by  Sandius.^ 
Stockmans  uses  the  following  language.  Non  exigua  vis 
est  communis  regula,  cjiice  dictat,  testatorem  in  diibio  censeri 
dispositionem  siiam  aptare  jure  illius  loci,  ubi  agit  et  testa- 
mentum  condit,  ct  consuetudinem  ac  leges  municip)ales  loci 
tacith  influere,  ac  temperare  generates  testantiiim  locuiiones  et 
dispositiones.^  Paul  Voet  says ;  In  specie  autem  consiie- 
tudo  Icgis  verha  amhigua  intcrprctatur :  et  si  non  appareat. 


1  Ibid. 

2  Heilii,  Op.  De  Colis.  Leg.   ^  6,  n.  3,  p.  222,  edit.  171G  ;  Id.  p.  158, 
edit.  1737  ;  2  Burge,  Comm.  on  Col.  and  For.  Law,  Pt,  2,  ch.  9,  p.  859,  860. 

3  Ibid.;  Molin,  Opera,    Tom.    1,  De  Fiefs,  ^  33,  n.  86,  p.  410,  edit. 
IGGl. 

4  See  ante,  ^  479  e,  note  ;  4  Burge,  Comm.  on  CoL  and  For.  Law,  Pt. 
2,  ch.  12,  p.  591  to  p.  594,  where  the  opinions  of  these  jurists  are  cited. 

5  Stockm.  Decis.  27,  n.  1,  p.  27. 


CH.  XI.]  WILLS   AND    TESTAMENTS.  813 

quid  actum  sit  inter  contrahentes,  ad  cam,  tanqiiam  renim  ac 
verhonim  dominam,  reciirritur.  Quam  ctiam  in  perscni- 
tandd  icstatoris  voluntatc} 

k  479  m.  Indeed,  it  may  be  laid  down  as  a  general 
rule,  that  wherever  there  are  words  of  an  ambiguous 
signification,  or  different  significations  in  different  coun- 
tries are  used  in  a  will,  they  are  to  be  interpreted  in  the 
sense  in  which  they  are  used  in  the  law  of  his  domicil, 
with  which  he  may  be  presumed  either  to  be  most  fami- 
liar, or  to  have  adopted.  Sandius  says  \  In  amhigiia  Jiac 
testatoris  voliiniate  spcctandiim  esse  consuetudinem  7^e€iionis, 
in  qua  testator  versatus  est?  The  same  rule  has  been  re- 
cognized in  England,  or  rather,  it  has  been  generalized ; 
for  it  has  in  effect  been  held,  that  in  the  construction  of 
ambiguous  instruments  or  contracts,  the  place  of  execut- 
ing them,  the  domicil  of  the  parties,  the  place  appoint- 
ed for  its  execution,  and  other  circumstances  are  to  be 
taken  into  consideration.^ 

§  479  n.  In  respect  to  another  point,  whether  a  Court 
of  Equity  can  enforce  a  foreign  will,  of  which  there  has 
been  no  probate  obtained  from  our  own  courts,  the  prin- 
ciple seems  clear,  that  it  cannot.  A  Court  of  Equity 
can  know  nothing  of  a  will  of  personalty  in  England, 
unless  it  has  first  been  adjudged  a  will  in  the  proper 
Probate  or  Ecclesiastical  Court.  A  fortiori  the  rule 
must  apply  to  a  foreign  will.'' 


1  P.  Voet,  deStatut.  ^  3,  ch.  l,n.  2,  p.  100,  edit.  1715;  Id.  p.  Ill,  edit. 
16G1. 

2  Sand.  Decis.  Frisic.  Lib.  4,  tit.  8,  Defin.  7,  p.  195. 

3  Lansdovvne  v.  Lansdowne,  2  Bligh,  R.  60,  87  ;  4  Bur/^e,  Comm.  on 
Col.  and  For.  Law,  Pt.  2,  ch.  12,  p.  590,591.  See  Biinbury  d.  Bunbury, 
2  Jurist,  (English)   1839,  (before  Lord  CoUenham,)  p.  104,  111  to  114. 

4  Price  V.  Decrhurst,  5  M.  &  Craig,  76,  80. 


814  CONFLICT    OF   LAWS.  [CH.  XII. 


CHAPTEH  XII. 

SUCCESSION   AND    DISTRIBUTION. 

§  480.  Having  considered  the  operation  of  foreign 
law,  in  regard  to  testaments  of  movable  property,  and 
of  immovable  property,  we  next  proceed  to  the  right  of 
succession  in  cases  of  intestacy,  or,  as  the  phrase  is,  of 
succession  ab  intestato.  And,  here,  the  preceding  dis- 
cussions have  left  little  more  to  be  done,  than  to  state 
the  general  principles  applicable  to  each  species  of 
property. 

§  481.  First,  in  relation  to  movable  property.  The 
universal  doctrine,  now  recognized  by  the  common  law, 
although  formerly  much  contested,  is,  that  the  succes- 
sion to  personal  property  is  governed  exclusively  by 
the  law  of  the  actual  domicil  of  the  intestate  at  the 
time  of  his  death. ^     It  is  of  no  consequence,  what  is 


^  Suarez  v.  Mayor,  &c.,  of  New  York,  2  Sandf.  Ch.  R.  173.  Many  of 
the  authorities  to  sustain  this  point  have  been  already  cited,  ante,  ^  380  to 
385,  ^  4G5  to  474.  But  some  others  may  be  here  referred  to.  Pipon  v. 
Pipon,  Ambler,  R.  25  ;  Thorne  v.  Watkins,  2  Ves.  R.  35  ;  1  Chitty  on 
Comm.  and  Manuf.  661  ;  Sill  v.  Worswick,  1  H.  Black.  690,  691  ;  Bruce 
V.  Bruce,  2  Bos.  &  Pull.  229,  note;  Hunter  v.  Potts, 4  T.  R.  182;  Potter 
V.  Brown,  5  East,  R.  130;  Doe  d.  Birthwhistle  v.  Vardill,  5  Barn.  & 
Cressw.  438,  450  to  455  ;  S.  C.  9  Bligh,  R.  32  to  88  ;  2  Clark  &  Finell. 
R.  571  ;  Yates  v.  Thomson,  3  Clark  &  Finell.  R.  554  ;  Robertson  on 
Succession,  ch.  6,  p.  104  to  117  ;  Id.  ch.  8,  p.  118  to  201;  Thornton  v. 
Curling,  8  Sim.  R.  310  ;  Price  v.  Deerhuist,  8  Sim.  R.  279,  299  ;  Moore 
V.  Budd,  4  Hagg.  Eccles.  R.  346,  354  ;  4  Burge,  Comm.  on  Col.  and  For. 
Law,  Pt.  2,  ch.  4,  ^  5,  p,  156  to  170  ;  ante,  §  362,367,  378.  For  a  long 
time  the  law  of  Scotland  was  unsettled  on  this  point ;  but  it  now  coincides 


CH.  xil]  succession  and  distribution.  815 

the  country  of  the  birth  of  the  intestate,  or  of  his  for- 
mer clomicil,  or  what  is  the  actual  situs  of  the  personal 
property  at  the  time  of  his  death ;  it  devolves  upon 
those,  who  are  entitled  to  take  it,  as  heirs  or  distri- 
butees, according  to  the  law  of  his  actual  domicil  at  the 
time  of  his  death.^  Hence,  if  a  Frenchman  dies  intes- 
tate in  America,  all  his  personal  property,  whether  it 
be  in  America,  or  in  France,  is  distributable  according 
to  the  statute  of  distribution  of  the  State  where  he  then 
resided,  notwithstanding  it  may  differ  essentially  from 
the  distribution  prescribed  by  the  law  of  France. 

§  481  a.  So,  the  like  rule  prevails  in  the  ascertain- 
ment of  the  person  who  is  entitled  to  take  as  heir  or 
distributee.  The  law  of  the  domicil,  therefore,  is  to  de- 
cide, whether  primogeniture  gives  a  right  of  preference, 
or  an  exclusive  right  to  the  succession,  and  whether  a 
person  is  legitimate,  or  not,  to  take  the  succession.  So, 
whether  persons  are  to  take  per  ccqnta,  or  fier  stupes  ; 
and  the  nature  and  extent  of  the  right  of  presentation. 
Thus,   for  example,  in  England,  and  in  some  of  the 


with  that  of  England.  Robertson  on  Succession,  ubi  supra;  4  Burge, 
Comm.  ubi  supra;  Stairs,  Instit.  B.  3,  tit.  8,  ^  35 ;  Ersk.  Instit.  B.  3,  tit. 
9,  ^  4 ;  Livermore,  Dissert.  162,  163-;  Olivier  v.  Townes,  14  Martin,  R. 
99  ;  Shultz  v.  Pulver,  3  Paige,  R.  182;  De  Sobry  v.  De  Laistre,  2  Harr. 
&  Johns.  R.  193,  224,  228  ;  Holmes  v.  Rerasen,  4  Johns.  Ch.  R.  460  ;  S. 
C.  20  Johns.  R,  229  ;  De  Couche  v.  Savatier,  3  Johns.  Ch.  R.  190  ;  Erskine, 
Inst.  B.  3,  tit.  2,  §  40,  41  ;  Id.  B.  3,  tit.  9,  ^S  4;  2  Kames,  Equity,  B.  3, 
ch.  8,  §  3,  4,  p.  333,  345 ;  1  Boullenois,  Observ.  20,  p.  358 ;  2  Boullenois, 
54  ;  Id.  57  ;  Fergusson  on  Marr.  and  Div.  346,  361  ;  Vattel,  B.  2,  ^  85, 
103,  110,  111  ;  1  Hertii  Opera,  De  Collis.  Leg.  ^  4,  n.  26,  p.  135,  edit. 
1737 ;  Id.  p.  192,  edit.  1710 ;  Huberus,  De  Confl.  Leg.  Lib.  1,  tit.  3,  '^  15  ; 
Henry  on  Foreign  Law,  p.  13,  14,  15  ;  Id.  p.  46,  196;  J.  Voet,  ad  Pand. 
Lib.  38,  tit.  17,  ^  34,  p.  596  ;  Harvey  v.  Richards,  1  INIason,  R.  418  ;  2 
Froland,  Mem.  1294  ;  2  Dwarris  on  Statut.  G49 ;  Price  v.  Deerhurst,  4  M. 
&  Craig,  76,  83  ;  Preston  i>.  Mellville,  8  Clark  &  Finell.  1,  12. 
1  Ibid. 


816  CONFLICT    OF   LAWS.  [CH.  XII. 

American  States,  there  is  no  right  of  representation 
beyond  that  of  brothers'  and  sisters'  children,  as  to  the 
right  of  distribution,  in  cases  of  intestacy  of  immovable 
property.  If,  therefore,  a  man  should  die,  leaving  a 
brother  and  sister,  and  the  grandchildren  of  a  deceased 
brother,  the  latter  would  not  take  any  thing  in  virtue 
of  a  representation  of  the  deceased  brother.' 

§  481  h.  This  same  doctrine  is  maintained  with  equal 
broadness  by  foreign  jurists.  It  is  founded  in  a  great 
measure  upon  the  doctrine,  that  movables  have  no  situs, 
and  accompany  the  person  of  the  owner ;  so  that  in  fic- 
tione  juris  they  are  always  deemed  to  be  in  the  place 
of   his    domicil.      Mohilia  seqmmiiir  i^ersonam,   et   ejus 


1  4  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  4,  §  5,  p.  156  to 
160.  As  in  cases  of  movable  property,  the  law  of  the  domicil  is  thus  held 
to  regulate  the  succession  and  distribution  thereof;  the  question  may  often 
become  important,  what  is  the  actual  domicil.  As  to  this  see  ante,  ^  44  to 
50.  Upon  this  subject  many  difficult  questions  may  arise.  See,  for  ex- 
ample, De  Bonneval  v.  De  Bonneval,  1  Curteis,  R.  836  ;  Attor.  Gen.  v. 
Dunn,  6  Mees.  &  Welsh.  R.  511.  But  the  rule  itself  may  require  some 
modification,  where  the  law  of  the  domicil  of  the  intestate  is  intended  to 
take  away  the  rights  of  persons,  who  might  otherwise  succeed  to  movable 
property  in  another  country,  by  a  sort  of  hostile  perversity.  Thus,  it  has 
been  said,  that,  under  the  Berlin  and  Milan  decrees  passed  by  Napoleon, 
Englishmen  were  rendered  incapable  of  succeeding  to  the  personal  estates 
of  intestates  dying  in  Italy.  Such  a  law  might  require  England  to  dis- 
allow the  operation  of  the  general  rule,  as  to  personal  property  of  the  same 
intestate  situate  in  England.  See  Koster  v.  Sapte,  1  Curteis,  Eccl.  R.  691  ; 
ante,  ^  472,  note.  Suppose  a  person  should  die  in  transitu  from  his  acquired 
domicil,  the  question  might  then  arise,  whether  the  law  of  his  native  do- 
micil, or  of  his  acquired  domicil,  or  of  his  intended  domicil  was  to  govern. 
It  seems  clear,  that  a  domicil,  whether  native  or  acquired,  is  not  lost  by  a 
mere  abandonment.  It  is  not  defeated  animo  merely  ;  but  animo  et  facto, 
and  necessarily  remains  until  a  subsequent  domicil  is  acquired,  at  least 
unless  the  party  dies  in  transitu  to  his  intended  domicil.  This  last  qualifi- 
cation of  the  doctrine,  though  stated  by  a  learned  Judge,  may  be  exactly 
the  point  of  a  doubt,  whether  it  varies  the  rule.  Munroe  v.  Douglass,  5 
Madd.  R.  232.  See  also  2  Boullenois,  Appx.  p.  59,  60  ;  Jennison  v.  Hap- 
good,  10  Pick.  R.  77,  99. 


CH.  XII.]  SUCCESSION   AND    DISTRIBUTION.  817 

ossibus  adhcerent}  Thus  Roclenburg,  referring  to  the 
effect  of  a  change  of  domicil  on  succession,  takes  the 
very  distinction  between  movable  property  and  immo- 
vable pronerty,  founded  upon  its  nature  and  character. 
Jus  rchis  siiccedendi  immoUUhiis,  semper  a  loco  rei  sHco  me- 
ticndtmi,  hue  non  pertmet ;  succedendi  moUUhiis  periinet ; 
quod  ea  certo  loco  non  circumscripta,  comitentiir  personam  a 
chmicilio  ejus  accipicntia  leges?  Boullenois  fully  concurs 
in  this  opinion.^  Burgundus  holds  the  same  opinion.'^ 
Perhaps  it  might,  with  quite  as  much  accuracy,  be  said, 
that  the  doctrine  is  founded  in  a  great  public  policy, 
observed,  ex  comitate,  by  all  nations,  from  a  sense  of  its 
general  convenience  and  utility,  and  its  tendency  to 
avoid  endless  embarrassments  and  conflicts,  where  per- 
sonal property  has  often  changed  places ;  which  is  the 
view  entertained  by  John  Voet.^ 

§  482.  Paul  Voet  has  put  the  principle  in  a  compen- 
dious manner.  Idem  nc  infcrendum  cle  statutis,  quce  spec- 
tant  siiccessiones  ah  intestato  ?  Respondeo,  quod  ita  ;  rem 
enim  afficvuni,  non  personam,  ut  legihus  loci,  iibi  bona  sita 
sunt,  vel  esse  intelligmitur,  regi  dehcant.  Immohilia  statutis 
loci,  uU  sita  ;  mohilia  loci  statntis,  nbi  testator  Jiahuit  domi- 
eilium.^    And  again  ;  Verum  an,  quod  de  immoUlihis  die- 


1  See  ante,  ^  362,  377,  378  ;  4  Surge,  Comm.  on  Col.  and  For.  Law 
Pt.  2,  ch.  4,  ^  5,  p.  157  ;  Fcelix,  Conflit  des  Lois,  Revue  Strang,  et 
Fran(j.  Tom.  7,  1840,  ^  32,  p.  221,  222. 

2  Rodenburg,  de  Div.  Stat.  tit.  2,  Pt.  2,  ch.  2,  §  1 ;  2  Boullenois  Appx. 
p.  59  ;  2  Boullenois,  ch.  2,  p.  54. 

3  2  Boullenois,  Observ.  33.  p.  57,  63,  64. 

4  Burgundus,  Tract.  2,  n.  20,  21  ;  Id.  Tract.  1,  n.  20. 

5  J.  Voet,  ad.  Pand.  Lib.  38,  lit.  17,  n.  34,  Tom.  2,  p.  596  ;  post, 
§  482  a,  note. 

6  P.  Voet,  §  4,  ch.  3,  n.  10,  p.  135,  edit.  1716  ;  Id.  p.  153,  edit.  1661  ; 
ante,  ^  475. 

CONFL.  69 


818  CONFLICT   OF   LAWS.  [CH.  XIL 

turn,  idem  de  mohiUhis  statuendum  erit  ?  Respondeo,  quod 
non.  Quia  illorum  honoriim  nomine  nemo  censehir  semet 
loci  legihis  siihjecisse.  TJt  qiice  res  certiim  locum  non  lia- 
hent,  quia  facile  de  loco  in  locum  transferiintur  ;  adeoque  se- 
cundum loci  statida  regidantur,  iihi  domicilmm  hahdt  de- 
functus} 

§  482  a,  Sandius,  in  speaking  of  successions,  takes 
the  like  distinction  between  movables  and  immovables. 
Aliud  Judicium  est  de  mobilibus,  quce  ex  conditione  perso- 
narum  legem  accipiimt^  nee  loco  continere  dicuntur,  sed  per- 
sonam sequuntur,  et  ah  ea  dependent ;  et  ideo  omnia  ulicmique 
mohilia  legihus  domicilii  suhjiciuntur.^  Strykius  affirms  the 
same  doctrine ;  as  do  Gaill,  and  Christinieus,  and  John 
Voet.^  The  latter  says  ;  Cceterum  occasione  variantium  in 
successionem  intestatam  statidorum,  generaliter  ohservandum 
est,  hona  defuncti  immohiUa,  et  quce  juris  interpretatione  pro 
ialihus  Imhentur,  deferri  secundum  leges  loci,  in  quo  sita 
sunt ;  adeo,  ut  tot  censeri  deheant  diversa  patrimonia,  ac  tot 
hcereditates,  quot  locis,  diverso  jure  identibiis,  immohilia  ex- 
istunt.  Mohilia  vera  ex  lege  domicilii  ipsius  defuncti,  vel 
quia  semper  domino  prcBsentia  esse  finguntur,  aid  {id 
exposid,)  ex  comitcde,  passim  iisu}  Bynkershoek  is 
equally  positive.     Omnino  igitiir  interest  scire  non  tarn, 


1  P.  Voet,  De  Stat.  §  9,ch.  1,  n.  8,  p.  255,  edit.  1715  ;  Id.  p.  309,  edit. 
1661.  See  also  to  the  same  point  John  Voet  ad.  Pand.  Tom.  1,  Lib.  1,  tit, 
4,  Ps.  2,  n.  11,  p.  44  ;  ante,  ^  362,  note  3. 

2  Sand.  Decis.  Frisic.  Lib.  4,  lit.  8,  Defin.  7,  p.  194. 

^  Sirykius,  de  Success.  Diss.  1,  ch.  4,  n.  3  ;  Gaill,  Pract.  Observ.  Lib. 

2,  Observ.  124,  n.  18,  p.  552  ;  Chrislin.  Decis.   Cur.  Belg.  Vol.  2,  Decis. 

3,  n.  2,  3,  p.  4 ;  J.  Voet,  ad  Pand.  Lib.  38,  tit.  17,  De  Success,  ab  Intes- 
tate, n.  34,  Tom.  2,  p.  596  ;  Fffilix,  Conflit  des  Lois,  Revue  Etrang.  et 
Fran^.  Tom.  7,  1840,  ^  37,  p.  307  to  311  ;  4  Burge,  Comm.  on  Col.  and 
For.  Law,  Pt.  2,  ch.  4,  ^  5,  p.  156  to  158. 

^  J.  Voet,  Comm.  ad  Pand.  Lib.  38,  tit.  17,  n.  34,  Tom.  2,  p.  590. 


CH.  XII.]  SUCCESSION   AND    DISTRIBUTION.  819 

uU  qids  decessit,  qiiam  uU  dccedens  domiciliiim  Jmhiit ;  nam 
si  hoe  sciamiiSy  secundum  leges  domicilii  hceredilas  intesiati 
defertiir,  sive  major,  sive  minor  decesserit  quod  ad  mohUia 
nempe,  et  quce  pro  molilibiis  habentur} 

§  483.  Secondly,  in  relation  to  immovable  property. 
And  here  a  very  different  principle  prevails  at  the  com- 
mon law.  The  descent  and  heirship  of  real  estate  are 
exclusively  governed  by  the  law  of  the  country,  within 
which  it  is  actually  situate.  No  person  can  take,  ex- 
cept those,  who  are  recognized  as  legitimate  heirs  by 
the  laws  of  that  country ;  and  they  take  in  the  propor- 
tions, and  the  order,  which  those  laws  prescribe.  This 
is  the  indisputable  doctrine  of  the  common  law.^ 

§  483  a.  Foreign  jurists  are  not,  indeed,  universally 
agreed,  even  as  to  this  point,  although  certainly  they 
differ  less  than  in  most  other  cases.  It  may  truly  be 
said,  that  the  generality  of  them,  (having  a  great 
weight  of  authority,)  unequivocally  admit,  that  the  de- 
scent and  distribution  of  real  estate  are,  and  ought  to  be, 
governed  by  the  Lex  rei  sitce?     On  this  head  it  might 


1  Bynkers.  Quest.  Privat.  Jur.  Lib.  1,  ch.  16,  p.  179,  180. 

2  4  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  4,  ^  5,  p,  151,  152, 
Doe  d.  Birthwhistle  t^.  Vardill,  5  Barn.  &  Cres.  p.  451,  452;  S.  C.  6 
Bligh,  R.  479,  note  ;  9  Bligh,  R.  32  to  88 ;  1  Rob.  R.  (House  of  Lords) 
p.  627 ;  ante,  ^  364  to  366,  ^  426  to  429  ;  post,  ^  483  a,  note  ;  S.  P.  Bun- 
bury  V.  Banbury,  1  Jurist,  (English)  1839,  p.  104. 

3  The  authorities  to  this  point  also  have  been  already  cited,  ante,  ^  424 
to  448.  See  Doe  dem.  Birthwhistle  v.  Vardill,  5  Barn.  &  Cres.  438  ; 
United  States  u.  Crosby,  7  Cranch,  R.  115  ;  Kerr  v.  Moon,  9  Wheaton,  R. 
556,  570  ;  McCormicku.  Sullivant,  10  Wheaton,  R.  192  ;  Dunbar  v.  Dun- 
bar, 5  Louis.  Ann.  R.  159  ;  Darby  v.  Mayer,  10  Wheaton,  R.  409  ;  Hos- 
ford  V.  Nichols,  1  Paige,  R.  220;  Cutler  v.  Davenport,  1  Pick.  R.  81  ; 
Wills  V.  Cowper,  2  Hamm.  R.  124  ;  1  Ilertii  Opera,  De  Collis.  Leg.  ^  4, 
n.  26,  p.  135  ;  1  Boullenois,  25,  223,  &c.  ;  1  Froland,  Mem.  60,  61,  65  ; 
P.  Voet,  De  Stat.  ^  4,  ch.  2,  n.  6,  p.  123 ;  J.  Voet,  ad  Pand.  Lib.  1,  tit.  4, 
Pt.  2,  ^  3,  p.  39 ;  Ersk.  Inst.  B.  3,  tit.  2,  ^  40,  41,  p.  515 ;  D'Aguesseau, 


820  CONFLICT    OF   LAWS.  [CH.  XIL 

seem  almost  sufficient  to  adopt  the  language  of  John 
Voet,  in  his  classification  of  real  and  personal  statutes. 
He  reduces  to  the  class  of  real  statutes  whatever  regards 
inheritances.  Quo  pertinent  jura  successionuni  ab  intestato  ; 
quonani  online  ad  hona  quceque  ah  intestato,  quisque  in  ca- 
fita,  vel  sthyes,  vel  lineas,  vel  jura  primogeniturcB  admitten- 
dus  sit ;  qua  irdione  legitinii  ant  illegitimi,  agnaii,  cognati 
vocentur  ;  quceque  his  sunt  similia  ijlura}  Rodenburg  is 
equally  decisive.  Jus  rebus  succedendi  immohilihus  sem- 
j)er  a  loco  rei  sitce  rnetiendum?  Froland  gives  the  rule  in 
the  most  concise  but  energetic  terms,  attributing  the 
language  to  Dumoulin  ;  MoUlia  seqmuitur  personam  ;  im- 
mohilia  situm?  Dumoulin  says ;  Aid  statidum  datur  in 
rem  ;  puta,  hona  decendentis  veniant  ad  primo  genitum  ;  et 
turn  attenditur  statidum  hci,  in  quo  sita  sunt  hona}     Byn- 


Qi^uvres,  Tom.  4,  p.  637;  Huberus,  Lib.  1,  tit.  3,  ^  15  ;  2  Dwarris  on 
Statut.  p.  649  ;  Rodenburg,  Pt.  2,  tit.  2,  ch.  2  ;  2  BouUenois,  Appx. 
p.  59,  63  ;  2  BouUenois,  54,  57,  383  ;  2  Froland,  Mem.  ch.  7,  p.  1288  ; 
FcElix  Conflit  des  Lois,  Revue  Etrang.  et  Fran§.  Tom.  7,  1840,  §  37, 
p.  307  to  312  ;  4  Burge,  Comra.  on  Col.  and  For.  Law,  Pt.  2,  ch.  4,  ^  5, 
p.  151  to  156.  —  Since  the  preceding  sheets  were  worked  off,  I  have  ascer- 
tained, that  the  case  of  Doe  d.  Birthwhistle  v.  Vardill,  above  cited,  has 
been  afRrmed  in  the  House  of  Lords.  1  Rob.  R.  (House  of  Lords)  p.  627. 
The  ground  was,  that  by  the  law  of  England  no  person  could  inherit  lands 
as  heir,  who  was  not  born  after  the  marriage  of  his  parents. 

1  J.  Voet,  ad  Pand.  Lib.  1,  tit.  4,  P.  2,  ^  3,  Tom.  1,  p.  39;  Id.  Lib. 
38,  tit.  17,  n.  34,  Tom.  2,  p.  596. 

2  Rodenburg,  De  Div.  Stat.  P.  2,  tit.  2,  ch.  2,  p.  59  ;  2  BouUenois, 
Appx.  p.  54, 57.  See  also  Henrys,  CEuvres,  Tom.  2,  Lib.  4,  ch.  6,  Quest. 
105,  Observ.  Bretonnier,  p.  613,  614,  edit.  1771. 

3  2  Froland,  Mem.  1289.  —  I  cannot  find  any  such  expressive  language 
used  by  Dumoulin  in  the  passage  cited  by  Froland  ;  and  therefore  conclude 
that  it  is  his  own  concise  statement  of  Dumoulin's  opinion,  in  which  he  is 
certainly  correct.  The  passages  cited  Molin.  Opera, Tom.  2,  p.  701,  edit. 
1681,  Coutumes  de  Senlis,  art.  140  ;  Id.  p.  747,  Coutumes  d'Auvergne,  art. 
4;  Id.  Consil.  53,  p.  964  ;  Id.  Tom.  3,  p.  554,  Conclus.  de  Statut. 

*  Molin.  Oper.  Com.  in  Cod.  Lib.  1,  tit.  1,  1.  1,  Conclus.  de  Stat. 
p.  556,  edit.  1681. 


CH.  XII.]  SUCCESSION   AND    DISTRIBUTION.  821 

kershoek  in  his  bold  and  uncompromising  manner  as- 
serts, that  the  rule  is  so  well  established,  that  no  one 
dares  to  open  his  mouth  against  it.  ImmohUia  enim  de- 
ferri  ex  jure,  quodoUinet  in  loco  rei  sitce,  adeo  recepta  hodie 
seixtentia  est,  lit  nemo  ausit  contra  hiscere} 

§  483  h.  Paul  Voet  says  ;  Quid  si  circa  siiccessionem  ab 
irdestato,  statutonmi  sit  difformitas  ?  SpectaUtur  loci  statu- 
tum,  uhiimmohilia  sita,  non  uU  testator  moritur?  Rodenburg 
speaking  of  laws,  which  are  purely  real,  {quoi  qiddem 
jure  precipui  mere  realia  sunt,)  says  ;  Cujusmodi  appellamiis 
ea,  qucB  de  modo  dividendarwn  ah  intestato  licereditatiim 
tractant,  territorium  non  egredientia  ;  conspirxmt  enim  eo  vota 
fere  omnium,  hona  ut  dijudicentur  sua  lege  loci,  in  quo  sita 
sunt  vel  esse  intelliguntur.^  Burgundus,  after  remarking^ 
that  there  is  a  diversity  of  opinion  upon  this  subject 
among  jurists,  some  holding,  that  the  law,  of  the  situs  of 
the  property  is  to  govern,  some,  that  the  law  of  the 
domicil  of  the  intestate,  and  some  few,  that  the  law  of 
the  place,  where  the  intestate  happened  to  die,  then 
asserts  his  own  opinion.  Bononim  duce  sunt  species ;  alia 
enim  mohilia  sunt,  alia  immohilia  ;  ilia  a  persona,  Imc  a  situ 
cujusque  provincicB  legem  accipiunt ;  videlicet,  ut  mdla  liabita 
ratione  originis,  aut  mortis,  aut  domicilii,  tarn  hm^edum, 
qiiam  ipsius  dcfuncti,  dividantur  secundum  consuetudines 
locorum,  uhi  hona  vel  sunt,  vel  sita  esse  intelligiintur.^ 


1  Bynkers.  Quest.  Privat.  Jur.  Lib.  1,  ch.  16,  p.  180 ;  ante,  1,  ^  381. 

2  P.  Voet.  de  Statut.  ^  9,  ch.  1,  n.  3,  4,  p.  252,  253,  edit.  1715  ;  Id. 
p.  305,  306,  307,  edit.  1661  ;  ante,  ^  433,  475.  —  Paul  Voet  gives  a  long 
list  of  authorities,  supporting  the  doctrine,  ut  immobilia  statulis  loci  regan- 
tur,  ubi  sita.     P.  Voet,  ^  9,  ch.  1,  n.  4,  ubi  supra. 

3  2  Rodenburg,  De  Divers.  Statut.  tit.  2,  ch.  2,^  1,  n.  1  ;  2  Boullenois, 
Appx.  p.  14  ;  Id.  p.  74. 

4  Burgundus,  Tract.  1,  n.  36,  p.  38. 

69* 


822  CONFLICT    OF   LAWS.  [CH.  XII. 

§  483  c.  Boullenois  treats  the  subject  as  so  entirely 
free  from  doubt,  as  to  require  no  comment  or  expla- 
nation.^ D'Argentre,  as  we  have  seen,  resolutely 
maintains  the  same  opinion.^  Sandius  says;  Contra 
tamen  viilgo  a  dodorihiis  receptimi  est,  statiita  de  bonis  et 
siiccessione  intestati  dis^onentia  esse  realia,  nee  egredi  fines 
territorii.  Atque  ita  fieri,  lit  secundum  diversitatem  statu- 
torum  diversimode  suceedatur,  nan  aliter,  qiiam  si  per  fictio- 
nem  uniiis  hominis  diversa  sunt  patrimonia.  Et  immoUlia 
sunt  sub  jurisdictione  loci,  in  quo  jacent.  Statidum  igitur 
Hollandice  non  extendit  se  ad  res  immobiles  in  Frisia  situs  ; 
sedistce  subjacent  dispositione  juris  communis  quod  in  Frisia 
obtinet? 

§  483  d.  And  not  to  dwell  upon  a  point,  which,  al- 
though not  without  controversy  among  foreign  jurists, 
is  generally  established,  we  may  quote  the  opinion  of 
Huberus.  His  language  is ;  Non  potest  heic  omitti 
QiKEstio  frequens  in  foris  Jiodiernis,  a  juris  Romani  tamen 
aliena  terminis :  Quia  scepe  sit,  ut  diversum  jus  succedendi 
ab  intestate  in  locis,  uhi  defunctus  habuit  domicilium,  atque 
in  iis  locis,  ubi  bona  sita  sunt,  obtineat,  dubitatur,  secundum 
utriiis  loci  leges  successio  regenda  sit.  Communis  et  recta 
sententia  est,  in  rebus  immobilibus  servandum  esse  jus  loci, 
in  quo  bona  sunt  sita  ;  quia  cum  partem  ejusdem  territorii 
faciant,  diversce  jurisdictionis  legibus  adfici  non  ^^ossunt. 
Verum  in  mobilibus  nihil  esse  caiisw,  cur  aliud  quam  jus 
domicilii  sequamur  ;  quia  res  mobiles  non  habent  affectionem 
versus  territorium,  sed  ad  personam  patrisfamilias  duntaxat ; 
qui  aliud  quam,  quod  in  loco  domicilii  obtinebat,  voluisse 
videri  non  potest.^ 

1  1  Boullenois,  Observ.  20,  p.  358  ;  2  Boullenois,  Observ.  4],  p.  383. 

2  Ante,  §  438. 

3  Sand.  Decis.  Lib.  4,  tit.  8,  Defin.  7,  p.  194. 

4  Huberus,    Vol.   1,    Lib.    3,  De  Success,  n.   (s),p.   278.     See  also 


CH.   XII.]  SUCCESSION   AND    DISTRIBUTION.  823 

§  484.  We  have  already  had  occasion  to  state,  that 
in  the  interpretation  of  wills  of  immovable  property,  and 
of  movable  property,  if  the  description  of  persons,  who 
are  to  take,  be  by  some  general  designation,  such  as 
"  heirs,"  or  "  next  of  kin,"  "  issue,"  or  "  children,"  the 
rule  of  the  common  law  is,  that  they  are  to  be  ascer- 
tained by  the  Lex  domicilii,  both  in  regard  to  immovable 
property,  and  to  movable  property,  unless  the  context 
furnishes  some  clear  guide  for  a  different  interpretation.^ 
The  same  rule  will  apply  in  cases  of  the  descent  and 
distribution  of  movable  property  ah  intestato,  for  the 
reason  already  suggested ;  that  it  is  deemed  by  fiction 
of  law  to  be  in  the  place  of  his  domicil,  and  therefore  to 
be  distributable  according  to  the  Lex  domicilii;  and 
consequently,  who  are  the  "issue,"  or  "children,"  or 
"heirs,"  or  "next  of  kin,"  is  a  matter  to  be  ascertained 
by  that  law.-  But  in  regard  to  immovable  property  a 
different  rule  prevails,  founded  upon  the  actual  situs  ;  and 
as  the  succession  is  to  be  according  to  the  Lex  loci  situSj 
the  persons,  who  are  to  take  by  succession,  can  be  ascer- 
tained only  by  reference  to  the  same  law.^ 


4  Burge,  Coram,  on  Col.  and  For.  Law,  Pt.  2,  ch.  4,  ^  5,  p.  150,  151,  152, 
154,  155. 

1  Ante,  ij  479  a,  479  m,  479  n  ;  2  Burge,  Comm.  on  Col.  and  For.  Law, 
Pt.  2,  ch.  9,  p.  855  to  858. 

2  See  Thorne  v.  Watkins,  2  Ves.  35  ;  Brown  v.  Brown,  or  Gordon  v. 
Brown,  2  Hagg.  Eccl.  R.  455,  note  ;  S.  C.  4  AVilson  &  Shaw,  28;  P. 
Voet,  De  Statut.  ^  3,  ch.  1,  n,  2,  p.  100,  edit.  1715;  Id.  p.  Ill,  edit.  1661  ; 
Elliott  V.  Lord  Minto,  6  Madd.  R.  16  ;  Earl  of  Winchelsea  v.  Garety,  2 
Keen,  R.  293,  309,  310  ;  ante,  479  e  ;  post,  ^  490,  ^  529. 

3  Doed.BirthwhisiIei).  Vardill,  5  Barn.  &  Cressw.438;  S.  C.  6  Bligh, 
R.  749  ;  S.  C.  9  Bligh,  R.  32  ;  ante,  ^  364  to  ^  366,  i}  426  to  429,  ^  483  ; 
4  Burge,  Comm.  on  Col.  and  For.  Law,  ch.  4,  ^  5,  p.  150,  to  p.  156.  Id. 
ch.  15,  ^  4,  p.  722  to  p.  734  ;  Elliott  v.  Lord  Minto,  6  Madd.  R.  16  ;  Earl 
of  Winchelsea  v.  Garety,  2  Keen,  R.  293,  309,  310 ;  post,  ^  529. 


824  CONFLICT    OF    LAWS.  [CH.  XIL 

§  484  a.  Foreign  jurists  generally,  although  not  uni- 
versally, maintain  the  same  doctrine ;  and  accordingly 
hold,  that  in  cases  of  succession  ab  mtestato  we  are  to 
ascertain  the  persons  who  are  to  take  the  inheritance 
by  the  Lex  loci  rei  sitce,  whether  the  question  respect 
legitimacy,  or  primogeniture,  or  right  of  representation, 
or  proximity  of  blood,  or  next  of  kin.  John  Yoet  is 
very  full  and  explicit  on  this  subject.  He  says ;  Positd 
ergo  varietate,  si  qucEras,  cujiis  loci  leges  in  reprcesentatione 
ohservandce  sint  ?  respondendum  videtur  eodem  modo,  quo  su- 
pra in  principali  qiicestione  de  successione  ;  pida,  mohiliiim 
intuitu  spectandas  esse  leges  domicilii  defuncti,  immohiliimi 
respectii  leges  cujusque  loci,  in  quo  ilia  sita  sunt :  eo  quod 
jus  reprcBsentaiionis  omnino  ad  jus  successionis  intestatce  per- 
tinet,  imo  successorem  facit  eum  tanquam  ex  fictione  legis 
proximum,  qui  vere  atque  naturalUer  defuncto  ptvximus  non 
est} 

§  485,  But  these  general  principles  still  leave  behind 
them,  even  in  the  common  law,  some  very  embarrassing 
difficulties ;  and  in  the  complex  systems  of  foreign  law 
the  difficulties  are  greatly  multiplied.  Sir  William 
Grant  adverted  to  this  subject  in  an  important  case, 
and  said ;  "  Where  land  and  personal  property  are  situ- 
ated in  different  countries,  and  governed  by  different 
laws,  and  a  question  arises  upon  the  combined  effect  of 
those  laws,  it  is  often  very  difficult  to  determine  what 
portion  of  each  law  is  to  enter  into  the  decision  of  the 
question.      It  is  not  easy  to  say,  how  much  is  to  be 


1  J.  Voet,  ad  Pand.  Tom.  2,  Lib.  38,  tit.  17,  n.  35,  p.  597.  See  Id. 
Lib.  38,  tit.  18,  n.  84,  p.  639,  where  he  adds;  Denique  prcetermittendum 
non  est,  in  eo,  an  jus  primogeniturce  admiltendutn  sit,  necne  ;  immobilium 
quidem  intuitu  spectandam  esse  legem  loci,  in  quo  sita  sunt ;  mobilium 
vero  respeclu  consuetudinem  domicilii  defuncti. 


CH.  XII.]  SUCCESSION   AND    DISTRIBUTION.  825 

considered  as  depending  on  the  law  of  real  property, 
which  must  be  taken  from  the  country,  where  the  land 
lies,  and  how  much  upon  the  law  of  personal  property, 
which  must  be  taken  from  the  law  of  the  domicil,  and 
to  blend  both  together,  so  as  to  form  a  rule  applicable 
to  the  mixed  question,  which  neither  law  separately  fur- 
nishes sufficient  materials  to  decide."  ^ 

§  486.  Two  cases  of  a  curious  nature  were  on  the 
same  occasion  mentioned  by  Sir  William  Grant,  as 
illustrative  of  his  remarks,  which  cannot  be  better  stat- 
ed than  in  his  own  language.  "I  have  argued,  (said 
he)  in  the  House  of  Lords,  cases,  in  which  difficulties  of 
that  kind  occurred.  Two  of  the  most  remarkable  were 
those  of  Balfour  v.  Scott,^  and  Drummond  v.  Drummond.^ 
In  the  former,  a  person  domiciled  in  England  died  intes- 
tate, leaving  real  estate  in  Scotland.  The  heir  was  one 
of  the  next  of  kin;  and  claimed  a  share  of  the  personal 
estate.  To  this  claim,  it  was  objected  that,  by  the  law 
of  Scotland,  the  heir  cannot  share  in  the  personal  pro- 
perty with  the  other  next  of  kin,  except  on  condition  of 
collating  the  real  estate  ;  that  is,  bringing  it  into  a  mass 
with  the  personal  estate,  to  form  one  common  subject  of 
division.  It  was  determined,  however,  that  he  was  en- 
titled to  take  his  share  without  complying  with  that 
obligation.  There  the  English  law  decided  the  ques- 
tion." ^ 

§  487.     He  then  added;  "In  Drummond  v.  Drum- 


1  Brodie  v.  Barry,  2  Ves.  &  Beames,  R.  130,  131. 

^  See  Robertson  on  Successions,  p.  202  to  207  ;  4  Burgc,  Comm.  on 
Col.  and  For.  Law,  Pt.  2,  eh.  15,  ^  4,  p.  731  ;  6  Brown,  Pari.  R.  731, 
by  Tomlins. 

3  6  Brown,  Pari.  R.  (Tomlins's  Edit.)  p.  550  ;  4  Burge,  Comm.  on  Col. 
and  For.  Law,  Pt.  2,  ch.  15,  §  4,  p.  729. 

4  Brodie  v.  Barry,  2  Ves.  &  Beam.  130,  131. 


826  CONFLICT    OF   LAWS.  '         [CH.  XIL 

mend,  a  person,  domiciled  in  England,  had  real  estate  in 
Scotland ;  upon  which  he  granted  a  heritable  bond,  to 
secure  a  debt  contracted  in  England.  He  died  intes- 
tate ;  and  the  question  was,  by  which  of  the  estates 
this  debt  was  to  be  borne.  It  was  clear,  that  by  the 
English  law  the  personal  estate  was  the  primary  fund 
for  the  payment  of  debts.  It  was  equally  clear,  that 
by  the  law  of  Scotland  the  real  estate  was  the  primary 
fund  for  the  payment  of  the  heritable  bond.  Here 
was  a  direct  Conflictiis  legum.  It  was  said  for  the  heir, 
that  the  personal  estate  must  be  distributed  according 
to  the  law  of  England,  and  must  bear  all  the  bur- 
dens, to  which  it  is  by  that  law  subject.  On  the  other 
hand,  it  was  said,  that  the  real  estate  must  go  accord- 
ing to  the  law  of  Scotland ;  and  bear  all  the  burdens 
to  which  it  is  by  that  law  subject.  It  was  determined, 
that  the  law  of  Scotland  should  prevail ;  and  that  the 
real  estate  must  bear  the  burden."  ^ 

§  488.  In  conclusion  he  said;  "In  the  first  case, the 
disability  of  the  heir  did  not  follow  him  to  England ; 
and  the  personal  estate  was  distributed,  as  if  both  the 
domicil  and  the  real  estate  had  been  in  England.  In 
the  second,  the  disability  to  claim  exoneration  out  of 
the  personalty  did  follow  him  into  England ;  and  the 
personal  estate  was  distributed,  as  if  both  the  domicil 
and  the  real  estate  had  been  in  Scotland."  ^ 

§  489.  Another  illustration  is  furnished  by  the  very 
case  then  in  judgment  before  Sir  William  Grant,  which 


1  Brodie  v.  Barry,  2  Ves.  &  Beam,  130,  131.  See  also  Drummond  v. 
Drummond,  6  Brown,  Pari.  R.  (Tomlins's  Edit.)  p.  550;  post,  ^  5"29  ; 
Iloberlson  on  Successions,  p.  209,  214  ;  4  Burge,  Comm.  on  Col.  and 
For.  Law,  Pt.  2,  ch.  15,  §  4,  p.  722  to  p.  734. 

2  Brodie  v.  Barry,  2  Ves.  &  Beam.  p.  132  ;  ante,  ^  2G6  ;  post,  §  529. 


CH.    XII.]  SUCCESSION   AND    DISTRIBUTION.  827 

turned  upon  the  question,  whether  an  heir  at  law  of 
heritable  property  in  Scotland,  being  a  legatee  of  per- 
sonal property,  which  was  in  England,  under  a  will  of  the 
testator,  which  intended  to  dispose  of  all  his  real  pro- 
perty in  England  and  Scotland,  but  which  will,  not  being 
conformable  to  the  law  of  Scotland,  was   not  capable 
of  passing  real  estate  there,  should  be  put  to  his  election 
to  take  the  legacy  under  the  will,  or  to  surrender  to  the 
purposes  of  the  will  the  Scotch  heritable  property.     Sir 
William    Grant  decided  in  the  affirmative;  and  said; 
"  Now,  what  law  is  to   determine,  whether  an  instru- 
ment of  any  given  nature  or  form  is  to  be  read  against 
an  heir  at  law  for  the  purpose  of  putting  him  to  an 
election,  by  which    the   real  estate   may  be  aflected  ? 
According  to  Lord  Hardwicke,  and  the  Judges  who  have 
followed  him,  that  is  a  question  belonging  to  the  law  of 
real  property ;   for  they  have  decided  it  by  a  statute, 
which  regulates  devises  of  land.     Upon  that  principle, 
if  the  doraicil  were  in  Scotland,  and  the  real  estate  in 
England,  an  English  will,  imperfectly  executed,  ought 
not  to  be  read  in  Scotland  for  the  purpose  of  putting 
the  heir  to  an  election;  and,  upon  the  same  principle,  if, 
by  the  law  of  Scotland,  no  will  could  be  read  against  the 
heir,  it  would  follow,  that  a  will  of  land,  situated  in 
Scotland,  ought  not  to  be  read  in  England,  to  put  the 
Scotch  heir  to  an  election.     Doubting  much  the  sound- 
ness of  that  principle,  I  am  glad,  that  the  case  of  Cun- 
ningham V.  Gayner,'  relieves  me  from  the  necessity  of 
deciding  the  question;  as,  whichever  law  is  applied  to 
the  decision  of  the  present  case,  the  result  will  be  the 
same,  &c.      If  the  law  of  Scotland  is  resorted  to,  the 


1  1  Bligh,  R.  27,  note  ;  Robertson  on  Successions,  p.  219,  220. 


828  CONFLICT    OF    LAWS.  [CH.    XIL 

case  alluded  to  determines,  that  the  English  will  may 
be  read  against  the  Scotch  heir,  for  the  purpose  of  put- 
ting him  to  an  election."  ^ 

§  489  a.  Other  questions  of  a  very  difficult  and  em- 
Ibarrassing  nature  may  arise,  as  to  the  nature  and  ex- 
tent of  the  liability  of  the  heirs  to  the  payment  of  debts 
and  other  charges  of  the  intestate,  chargeable  on  his  real 
estate,  situate  in  different  countries,  where  different 
rules  prevail  as  to  the  nature  and  extent  of  the  liability 
of  the  heirs  in  respect  to  such  real  estate,  and  the  real 
estate  descends  to  different  persons,  and  in  a  different 
manner  in  the  respective  countries.  The  question  may 
respect  the  exclusive  or  primary  applicability  of  one  or 
more  of  the  real  estates  to  the  discharge  of  such  debts 
or  other  charges ;  or  the  liability  of  the  heirs  in  solido,  or 
2yro  portione  hcereditaria ;  or  the  right  of  the  heirs  or  de- 
visees of  the  real  estates  in  one  country,  to  contribution 
or  indemnity  from  the  heirs  or  devisees  of  the  real  estate 
in  another  country ;  or  the  right  of  the  creditors  to 
proceed  against  them  all  in  soUdo,  otx  pro  -portione  hoeredi- 
iarid? 

§  489  T).  Many  cases  of  this  sort  have  been  discussed 
by  foreign  jurists,  and  decided  by  foreign  tribunals. 
Thus,  for  example,  where  one  part  of  the  succession 
has  been  situate  in  a  country,  by  whose  laws  the  cre- 
ditors are  permitted  to  proceed  against  each  heir  in 
solido,  and  another  part  in  the  country  of  the  domicil  of 
the  intestate,  by  whose  laws  the  creditors  are  entitled 
to  proceed  against  each  heir  pro  portione  hcereditaria ; 


1  1  Brodio   v.  Barry,  2   Ves.   &   Beames,   R.  127,  133;  ante,  ^  479  a, 
note;  Robertson  on  Successions,  p.  217,  218. 

2  See  1  Boullenois,  Observ.  17,  p.  277  to  p.  288,  where  the  subject  is 
much  discussed.     Bouhier,  Cout.  de  Bourg.  ch.  21,  §  213,  214,  p.  416. 


CH.  xil]  succession  and  distribution.  829 

there  has  been  no  small  diversity  of  judgment,  as  to 
the  rule,  which  ought  to  be  applied  in  favor  of  the  cre- 
ditors ;  whether  the  rule  of  the  law  rei  sitcv,  or  of  the  law 
of  the  domicil,  as  to  the  nature  and  extent  of  the  liability 
of  the  heirs.^  Perhaps,  in  such  a  case,  the  right  of  the 
creditors  against  the  heirs  respectively  may  most  pro- 
perly be  deemed  to  be  governed  by  the  Lex  rei  sitw  j 
and  the  mode  of  proceeding  against  them  be  regulated 
by  the  law  of  the  place,  where  he  seeks  his  remedy. 
If  he  seeks  to  enforce  his  rights  in  the  place  of  the  do- 
micil  of  the  intestate,  he  must  recover  against  each  heir 
pro  iiortione  hccreditariCi.  If  he  seeks  to  enforce  them  in 
the  other  country,  then  the  heirs  are  there  liable  to  him 
in  soliclo.  But  this  opinion  is  far  from  having  the  assent 
of  several  distinguished  jurists.  They  hold,  that  the 
creditors  are  entitled  to  proceed  against  the  heirs  in 
either  country,  according  to  the  law  of  the  domicil  of 
the  intestate  j  because  it  is  there,  that  they  suppose  the 
heirs  to  have  contracted  the  debt  to  the  creditors.  Of 
this  opinion  are  Paul  de  Castro,  Christina}us,and  Bouhier, 
as  well  as  the  judges  of  several  foreign  tribunals.^  On 
the  other  hand,  other  jurists  hold,  that  in  each  country 
respectively,  the  heirs  contract  with  the  creditors  accord- 
ing to  the  law  of  the  place,  where  the  succession  is  de- 
volved upon,  and  is  assumed  by  the  heir,  that  is,  the 
Lex  rei  sitce.     Of  this  latter  opinion  are  many  distin- 


1  4  Burge,  Comm.  on  Col.  and  For.  Law,  Vt.  2,  ch.  15,  ^  4,  p.  722, 
723,  724,  who  cites  several  authorities  upon  the  subject.  Among  them  are 
Christin.  Tom.  1,  Decis.  283,  n.  15,  IG  ;  J.  Voet,  Lib.  29,  tit.  2,  n.  31  ; 
Merlin,  R6pert  tit.  Dette,  i^  4  ;  1  Boullenois,  Observ.  17,  p.  278  ;  Bouhier, 
Cout.  de  Bourg.  ch.  21,  n.  213. 

2  1  Boullenois,  Observ.  17,  p.  277,  278;  Bouhier,  Cout.  do  Bourg,  ch. 
31,  n.  213,  p.  416  ;  Christin.  Decis.  Tom.    1,  Decis.  283,  n.  15,  16,  p. 

CONFL.  70 


830  CONFLICT    OF    LAWS.  [CH.  XIL 

guished  jurists.'  Merlin  inclines  strongly  to  this  latter 
opinion.^  Boullenois  leaves  the  question  without  any 
expression  of  his  own  views,  saying  that  it  is  a  point 
full  of  difficulty.^ 

§  489  c.  A  question  of  another  sort  may  arise  between 
the  heirs  or  devisees  of  the  deceased  party,  who,  as  be- 
tween themselves,  in  cases  of  successions  or  wills  of  im- 
movable property  in  different  countries,  governed  by 
.  different  laws,  is  ultimately  to  bear  the  debts  of  credit- 
ors, or  other  charges,  for  which  such  property  is  liable, 
and  which  some  of  the  heirs  have  been  compelled  to 
pay.  In  such  cases  the  question  must  first  arise,  which 
fund  is  primarily  liable  for  the  payment  or  discharge 
thereof  inter  sese;  for  it  should  seem,  that,  as  between 
themselves,  the  fund  primarily  liable  should  ultimately 
be  held  chargeable  therewith  in  exoneration  of  all  the 
other  funds.  If  there  is  no  such  priority  of  liability, 
but  all  the  funds  are  equally  liable  ^^(rtr/j'MS^z^,  then  it 
should  seem  reasonable,  that  each  fund,  wherever  it  is 
actually  situate,  should  contribute  2^^^o  rata,  according 
to  its  value  in  the  hands  of  each  heir  respectively,  to 
the  discharge  of  the  common  burden.  If  part  of  the 
funds  are  exempted  from  contribution,  they  should  still 
possess  that  privilege  ;  and  the  residue  contribute.  It 
will,  however,  be  found  difficult  to  affirm,  that  foreign 
jurists  and  tribunals  have  given  any  uniform  support 
to  these  doctrines.* 


353.     See  also  J.  Voct,  ad.  Pand.  Lib.  29,  n.  31,  32,  Tom.  2,  p.  376  ; 
Merlin,  Repert.  Dette,  ^  4. 

1  Bouhicr,  Cout.  de  Bourg.  ch.  21,  n.  213,  211,  p.  416. 

2  Merlin,  Repertoire,  Dette,  ^  4. 

3  1  Boullenois,  Obscrv.  17,  p.  279. 

4  Polliier  appears  to  hold  this  doctrine.     Pothierdes  Successions,  ch.  5, 


CH.  XII.]  SUCCESSION   AND    DISTRIBUTION.  831 

§  490.  Other  illustrations  of  the  difficulties,  attendant 
upon  the  administration  of  this  branch  of  law,  are  to  be 
found  in  the  application  of  local  rules  to  the  interpreta- 
tion of  wills,  whether  arising  from  the  Lex  domicilii  or 
the  Lex  rci  sitce^  as  tKe  case  may  regard  movable  pro- 
perty, or  immovable  property.     We  have  already  had 


^  1,  p.  223,  4to  edit.  He  there  cites  a  case,  of  which  Mr.  Burge  has^ 
given  the  substance  as  follows.  "  An  inhabitant  of  Biois,  where  the  cou- 
tume  burdened  the  heir  to  the  movable  estate  with  all  the  movable  debts, 
left  in  his  succession  biens  propres  situated  in  Blois,  and  others  situated  in 
Orleans.  The  coutume  of  the  latter  place  makes  all  the  different  heirs 
subject  to  all  the  debts.  He  left  an  heir  to  his  movable  estate,  and  ano- 
ther heir  to  his  biens  propres,  situated  in  Orleans  and  Blois.  In  this  case 
Pothier  says,  that  the  heir  to  the  biens  propres  must,  conformably  to  the 
coutume  of  Orleans,  where  he  had  succeeded  to  that  part  of  the  succession, 
bear  his  part  of  all  the  debts  of  the  succession,  even  those,  which  are 
movable,  regard  being  had  to  the  value,  which  the  real  estate  at  Orleans 
would  bear  to  the  whole  succession.  By  this  apportionment  effect  is 
given  to  the  coutume  of  Orleans  as  well  as  to  that  of  Blois,  for  the  heir  to 
the  real  estate  contributes  only  to  the  debts  in  respect  to  that  part  of  the 
estate,  which  is  situated  in  Orleans,  and  he  does  not  contribute  in  respect 
of  that  part,  which  is  situated  in  Blois."  4  Burge,  Comm.  on  Col.  and 
For.  Law,  Ft.  2,  ch.  15,  ^  4,  p.  724,  725.  The  same  subject  is  discussed 
at  large  in  2  Froland,  Mem.  des  Statut.  ch.  32,  p.  1547  to  1573,  and  he 
cites  several  adjudications,  and  among  others  one  stated  by  Basnage,  Cou- 
tume de  Normand.  Tom.  2,  art.  408,  p.  141.  See  also  1  Boullenois,  Ob- 
serv.  17,  p.  284,  who  cites  Mornac,  Comm.  on  Dig.  Lib.  5,  tit.  1, 1.  50,  1, 
De  Judiciis.  Mr.  Burge  has  expressed  his  own  opinion  in  the  following 
words.  "It  may  perhaps  be  stated  as  the  correct  rule,  that  where  an  obli- 
gation or  an  exemption  is  annexed  to  the  personal  estate,  but  no  similar 
obligation  or  exemption  is  annexed  to  the  real  estate,  the  lex  loci  domicilii 
will  prevail  in  whatever  country  the  rights  or  liabilities  of  the  heir  became 
the  subject  of  adjudication.  But  if  similar  obligations  or  exemptions  are 
annexed  to  the  personal  and  real  estate  by  the  respective  laws,  to  which 
the  succession  to  these  two  species  of  property  is  subject,  and  the  effect  of 
adopting  the  one  law  rather  than  the  other  would  be  to  throw  on  the  one 
estate  a  burden,  or  confer  on  it  an  exemption  not  annexed  to  it  by  the  law 
of  the  country  which  governed  the  succession  to  it,  it  would  be  the  more 
just  and  correct  rule  to  adopt  the  lex  loci  rei  sita;,  rather  than  the  lex  loci 
domicilii.  The  case  of  Drummond  and  Drnmmond  would  seem  to  warrant 
the  adoption  of  such  a  rule,  nor  is  the  decision  in  the  Bishop  of  Metz's  Sue- 


832  CONFLICT    OF   LAWS.  [CH.  XIL 

occasion  to  discuss  this  subject  in  another  place.^  But 
it  may  not  be  without  use  to  state  one  or  two  cases  a 
little  more  fully  than  has  been  already  done.  A  ques- 
tion of  this  sort  was  recently  discussed  in  the  House  of 
Lords  upon  a  will  made  in  Virginia,  by  which  the  tes- 
tator bequeathed  to  his  sister,  Mary  Brown,  "the  re- 
maining one  fourth  share  of  the  balance  of  his  estate, 
at  her  death  to  be  equally  divided  among  her  children, 
.if  she  should  have  any."  The  question  was,  what  es- 
tate Mary  Brown  took  under  the  will,  whether  a  life 
estate,  or  an  absolute  property.  And,  it  appearing,  that 
the  courts  of  Virginia  had  construed  the  bequest  to 
give  her  an  absolute  estate,  upon  the  footing  of  that 
decree,  the  House  of  Lords,  deeming  it  a  question  of 
American  law,  established  the  same  construction.^ 

§  491.  In  another  case,  the  same  principle  was  adopt- 
ed ;  and  the  Court  laid  down  the  rule,  that  in  the  con- 
struction of  a  will  the  Lex  domicilii  must  govern,  unless 
there  is  sufficient  on  its  face  to  show  a  different  inten- 
tion in  the  testator.  The  facts  were  these.  A  lad}^,  a 
native  of  Scotland,  was  domiciled  in  England.  On  a 
visit  to  Edinburgh  she  made  a  will  entirely  in  the  Scotch 


cession  at  variance  with  it.  The  lex  domicilii  had  alone  annexed  to  the 
personal  estate  an  exclusive  liability  to  pay  the  debts,  and  no  such  liability 
was  annexed  to  the  real  estate  by  the  loci  rei  sits.  The  only  liability 
which  was  annexed  to  the  real  estate  by  that  law,  was  an  obligation  to  con- 
tribute with  the  personal  estate  ;  but  such  a  contribution  could  not  take 
place,  because  the  personal  estate  was  subject  to  a  law,  which  made  it  ex- 
clusively applicable,  and  therefore  the  liability  to  contribute  could  only 
exist,  when  the  personal  estate  was  subject  to  the  same  law  as  the  real 
estate."  4  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  15,  p.  73'2, 
733. 

•  Ante,  ^  4T9  a  to  479  n. 

~  Gordon  v.  Brown,  or  Brown  v.  Brown,  3  Hagg.  Eccl.  R.  455,  note; 
S.  C.  4  W^ils.  &  Shaw,  p.  28  ;  ante,  ^  479  c. 


CH.  XII.]  SUCCESSION    AND    DISTRIBUTION.  833 

form,  and  it  was  deposited  with  the  writer  at  Edinburgh. 
She  had  personalty  in  England  only,  and  died  in  Eng- 
land. Scotland,  then,  was  the  domiciliimi  origmiB  et  forum 
contractus  ;  but,  on  the  other  hand,  England  was  the/o- 
7iun  domicilii  and  the  locus  rei  sitcc.  The  question  was, 
whether  by  the  legatee's  death  in  the  lifetime  of  the 
testatrix  the  legacy  lapsed  according  to  the  law  of  Eng- 
land, or  survived  to  the  legatee's  representatives  accord- 
ing to  the  law  of  Scotland.  The  Court  decided,  that 
being  domiciled  in  England,  it  was  to  be  presumed, 
that  she  intended  the  law  of  England  to  be  applied ; 
and,  that  there  was  not  enough  in  the  will  to  repel  that 
presumption.^ 


1  Anstruther  v.   Chalmers,  2  Simons,  R.  1  ;  3  Ilagg.  Eccl.  R.  444; 
Yates  r,  Thomson,  3  Clark  &  Finnell.  R,  544,  570  ;  ante,  §  479  c. 


ro* 


834  CONFLICT    OF  LAWS.  [CH.  XIII. 


CHAPTER  XIII. 

FOREIGN   GUARDIANSHIPS   AND    ADMINISTRATIONS. 

§  492.  The  order  of  our  subject  next  leads  us  to  the 
consideration  of  the  operation  of  foreign  laws  in  rela- 
tion to  persons  acting  in  autre  droit,  such  as  guardians, 
tutors,  and  curators  inter  vivos,  and  executors  and  ad- 
ministrators post  mortem. 

§  493.  And  first,  in  relation  to  guardians.^  By  the 
Roman  law  guardianship  was  of  two  sorts,  (1.)  Tutcia, 
and  (2.)  Ciira.  The  first  lasted  in  males,  until  they  ar- 
rived at  fourteen  years  of  age,  and  in  females,  until  they 
arrived  at  twelve  years  of  age,  which  was  called  the  age 
of  puberty  of  the  sexes  respectively.  From  the  time  of 
puberty,  until  they  were  twenty-five  years  of  age,  which 
was  their  full  majority,  they  were  deemed  minors,  and 
subject  to  curatorship.  During  the  first  period  of  tute- 
lage, their  guardian  was  called  tutor,  and  they  were 
called  pupils ;  during  the  second  period,  their  guardian 
was  called  curator,  and  they  w^ere  called  minors.^  In 
England  the  guardian  performs  the  offices  both  of  a  tu- 
tor and  a  curator  under  the  Roman  law.^  In  France, 
the  tutorship  lasts  until  the  full  age  of  majority.^ 


1  See  3  Burge,  Coram,  on  Col.  and  For.  Law,  Pt.  2,  ch.  23,  §  5,  p. 
1001  to  1014. 

2  1  Domat,  Civil  Law,  B.  2,  tit.  1,  p.  260  ;  Halifax,  Analysis  of  Civil 
Law,  ch.  9,  p.  15,  17,  18  ;  1  Brown,  Civil  Law,  B.  1,  ch.  5,  p.  129,  130. 
See  also  Ersk.  Inst.  B.  1,  tit.  6,  ^  1,  p,  128. 

3  Halifax,  Analysis  of  Civil  Law,  ch.  9,  p.  15,  17,  18 ;  1  Brown,  Civil 
Law,  B.  l,ch.  5,  p.  129,  130. 

4  1  Domat,  Civil  Law,  B.  2,  tit.  1,  p.  261. 


CH.  xiil]  foreign  guardianships.  835 

§  494.  In  treating  of  guardianship,  two  questions 
naturally  arise  ;  (1.)  Whether  the  authority  of  a  guar- 
dian over  the  person  of  his  ward  is  local,  and  confined 
to  the  place  of  his  domicil,  or  extends  everywhere  ? 
(2.)  Whether  the  authority  of  the  guardian  over  the 
property  of  his  ward  is  local,  or  extends  everywhere  ? 

§  495.  In  regard  to  the  first  point,  (the  authority  of 
the  guardian  over  the  person  of  his  ward,)  Boullenois 
maintains,  that  the  laws,  which  regulate  it,  are  strictly 
personal ;  and  therefore  that  the  authority  extends  to 
the  ward  in  foreign  countries,  as  well  as  at  home  ;  and 
is  of  equal  validity  and  right,  according  to  the  law  of 
the  domicil,  in  every  other  place,  "t/e  mets  (says  he) 
cm  nomhre  dcs  statuts  personnels,  ceiix,  qui  mettent  les  enfants 
sous  la  puissance  de  leiir  pere,  on  de  leiir  tiiteurr  *  From 
this,  it  would  seem  to  follow,  that  the  tutor  is  to  be  re- 
cognized, as  fully  entitled  to  assert  any  claims  over  the 
movable  property  of  his  ward,  and  to  sue  for  the  debts 
due  to  his  ward  in  foreign  countries,  without  having 
any  confirmation  of  the  guardianship  by  the  local 
authorities.^ 

§  496.  Merlin  expressly  holds  the  same  doctrine, 
asserting  that  the  foreign  guardian,  in  such  a  case,  is 
competent  to  maintain  any  suit  for  the  debts  due  to  his 
ward  in  France  and  in  the  Netherlands,  without  any  in- 
terposition of  the  local  authorities,  to  confirm  the  guar- 
dianship.^    "//  est  (says  he)  de principe,  cpie  Ics procurctr 


»  1  Boullenois,  Observ.  4,  p.  51  ;  Id.  p.  68;  ante,  57  ;  2  Boullenois, 
Observ.  39,  p.  320,  330. 

2  3  Burge,  Comm.  on  Col,  and  For.  Law,  Pt.  2,  ch.  23,  ^  5,  p.  1002, 
1003. 

3  Merlin,  Repertoire,  Absens.  ch.  3,  art.  3,  p.  37  ;  Id.  Faillite,  %  2,  n.  2, 
art.  9,  10,  ^  2,  p.  412.  See  also  Id.  Autorisation  Maritale,  ^  10,  art.  2  ; 
ante,  ^  53,  54. 


836  CONFLICT    OF   LAWS.  [CH.    XIIL 

tions  reveilles  de  la  forme  requise  ])ar  la  hi  du  lieu,  oil  elles 
se  passent,  ont  leiir  effet  fartout.  Aiissi  ne  s'est-on  Jamais 
avise  de  pretendre,  que  le  tideiir  nomme  a  iin  mineiir,  ou  a 
un  interdit,  par  le  jiige  de  son  domicil,  ne  p)id  agir  dans  tin 
pays  etr anger  contre  Ics  dehiteitrs  dhm  ou  de  V autre,  qiHapres 
avoir  fait  declarer  le  jugement  de  sa  nomination  execidoire 
dans  ce  pays^  ^ 

§  497.  Vattel  lays  down  a  similar  doctrine  in  more 
comprehensive  terms.  "It  belongs,  (says  he,)  to  the 
domestic  Judge  to  nominate  tutors  and  guardians  for 
minors  and  idiots.  The  law  of  nations,  which  has  an 
eye  to  the  common  advantage  and  the  good  harmony 
of  nations,  requires,  therefore,  that  such  nomination  of 
a  tutor  or  guardian  he  valid  and  acknowledged  in  all 
countries,  where  the  pupil  may  have  any  concerns."  ^ 
This  is  also  the  opinion  of  Huberus,  as  we  have  already 
seen; 3  and  it  is  stoutly  maintained  by  Hertius.  After 
having  stated  the  rule,  he  adds  ;  Ratio  hiijiis  regidce  est 
evidens.  Persona  enim  suMiti  qua  talis  nemini  alii  est  sui- 
Jecta,  quam  siimmo  imperanti,  cui  se  stihnisit.  Unde  fit,  id 
leges,  qiim  personce  qualitatem  sive  characterem  impmiiunt 
comitari  personam  soleant,  idticunqiie  etiam  locorum  versetur, 
tametsi  in  aliani  civitatem  migraverit,  veluti  si  qiiis,  magis 
infamis,  vel  prodigiis  declaretur^  Hinc  tutor,  (says  he) 
datus  in  loco  domicilii,  etiam  hona  alibi  siia  adminislrat.  He 
applies  this  rule,  however,  solely  to  personal  rights  and 
personal  incapacities,  rights  of  property  and  power  over 
movables.     For  in  respect  to  immovables,  he  adds  this 


'  Merlin,  Repertoire,  Faillite,  ^  2,  n.  2,  art.  10,  p.  414  ;  ante,  ^  53,  54. 

2  Vattel,  B.  2,  ch.  9,  ^  85. 

3  Ante,  ^  60. 

4  1  Ilerlii  Opera,  de  Collis.  Leg.  ^  4,  n.  8,  p.  123,  124,  edit.  1737  ;  Id. 
p.  175,  edit.  1716;  ante,  ^  51. 


CH.   XIII.]  FOREIGN   GUARDIANSHIPS.  837 

important  qualification  ;  Qiioniam  ipsi  fatenmr,  si  externa 
civitas  circa  hona  immoUlia  aliqidd  directe  disposidt,  earn  le- 
gem scrvari  oportere}  Stockmans  holds  a  broader  opi- 
nion. Tutor  etiam  pupilli  a  Praioreauthoritatem  et  admi- 
nistrationcm  siiam  extra  territoriam  Prwtoris,  et  in  hona  iiU- 
cimque  locoritm  sita  exercet?  Indeed,  this  same  doctrine 
is  commonly  asserted  by  all  those  foreign  jurists,  who 
give  to  personal  laws  an  ubiquity  of  operation.^ 

§  498.  On  the  other  hand,  there  are  jurists,  who 
maintain  a  different  opinion.  Paul  Yoet  denies,  that 
laws  respecting  either  persons  or  property,  have  in  the 
sense  of  the  civil  jurisprudence,  any  extra-territorial 
authority,  and  lays  down  among  others  the  following 


1  Ibid. 

2  Stockman.  Decis.  125,  n.  6,  p.  262.  Duraoulinis  thought  to  hold  the 
same  opinion  ;  but  it  may  well  be  doubted,  if  it  admits  of  that  interpreta- 
tion. Post,  §  502  a  ;  Molin.  Opera,  Tom.  3,  Comm.  ad  Cod.  Lib.  1,  tit. 
1,  1.  1,  Conclus.  de  Stat.  p.  556,  edit.  1681.  Mattha;us,  who  has  also 
been  cited  on  the  same  side,  certainly  does  not  hold  the  opinion.  His  lan- 
guage is  ;  Sed  etsi  silentio  suo  quodammodo  approbare  videatur  curatorem 
a  judice  domicilii  datum,  vixtamen  est,  ut  curator  ilia  prsedia  alibi  sita  pro- 
scribere  ac  venders  possit,  sine  speciali  permissu  ejus  judiciis,  in  cujus 
territoria  sita  sunt.  Sic  enim  et  Tutor  hodie  a  judice  domicilii  datur  ;  nee 
tamen  universorum  negotiorum  et  bonorum  administrationem  consequitur, 
nisi  cesset  judex  ejus  territorii,  in  quo  pra^dia  sita  sunt.  Matthteus,  de 
Auctionibus,  Lib.  1,  ch.  7,  n.  10,  p.  39.  See  also  3  Burge,  Comm.  on 
Col.  and  For.  Law,  Pt.  2,  ch.  23,  \  5,  p.  1002,  1003.  He  says  ;  "  The 
appointment  of  tutor  or  guardian,  committees  or  curators,  so  far  as  it  con- 
fers the  care  and  custody  of  the  person  of  the  minor  or  lunatic,  could  not 
consistently  with  the  principles  of  international  jurisprudence  be  made  by 
any  other  judicial  tribunal  but  that  of  the  country,  to  which  the  minor  or 
lunatic  was  by  his  residence  subject.  According  to  the  opinion  of  foreign 
jurists,  every  judicial  tribunal  is  bound  to  recognize  this  appointment. 
They  consider,  that  the  law,  which  places  the  minor  or  lunatic  sub  tiitela 
or  sub  cura.  is  a  personal  law, "afreet ing  the  status  of  the  person,  and  that 
the  relation  of  tutor  and  ward,  which  it  has  constituted,  continues  to  exist 
notwithstanding  the  persons  may  have  resorted  to  any  other  country." 

3  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  23,  §  5,  p.  1004, 
1005. 


838  CONFLICT    OF   LAWS.  [CH.   XIII. 

rules ;  (1.)  that  a  personal  statute  does  not  affect  the 
person  beyond  the  territory  of  his  domicil,  so  that  he  is 
not  to  be  reputed  such  without  the  territory,  as  he  was 
within ;  (2.)  that  a  personal  statute  accompanies  the 
person  everywhere,  in  regard  to  property  within  the 
territory  of  the  government,  where  the  person  has  his 
domicil,  and  to  which  he  is  subjected.'  He  adds,  that 
he  makes  no  distinction  in  this  respect,  whether  the 
statute  be  in  rem  or  in  personam  ;  or,  whether  it  purports 
to  extend  to  property  situate  in  a  foreign  territory  or 
not,  directly  or  indirectly ;  for  the  same  rule  applies  in 
each  case.  Quia  mdhm  siahdum,  sive  in  7xm  sive  in  per- 
sonam^ si  de  ratione  juris  civilis  sermo  instituatur  sese  ex- 
tendit  idtra  statuentis  icrritorium?  He  qualifies  his  doc- 
trine, however,  by  admitting,  that  movables  are  always 
deemed  to  be  in  the  place  of  the  domicil  of  the  party, 
and  are  therefore  governed  by  the  laws  thereof.^  John 
Voet,  as  we  have  seen,  maintains  a  similar  opinion  in 
the  broadest  and  most  unqualified  terms.^ 

§  499.  It  would  seem  from  Morrison's  case,^  that  the 
House  of  Lords  deemed  the  authority  of  an  English 
guardian  sufficient  to  institute  a  suit  for  the  personal 
property  of  his  ward  in  Scotland,  upon  the  ground,  that 
the  administration  of  his  personal  estate,  granted  by 
the  usual  authority,  where  he  resided,  must  be  taken  to 
be  everywhere  of  equal  force  with  a  voluntary  assign- 
ment by  himself     The  courts  of  Scotland  had  unequi- 


i  P.  Voet,  De  Stat.  §  4,  ch.  2,  n.  0,  p.  123,  edit.  1716  ;  Id.  p.  137,  edit. 
1661. 

2  Id.  n.  7,  p.  121,  edit.  1716  ;  Id.  p.  138,  edit.  1661  ;  ante,  ^  51  b,  §  52. 

3  Ante,  ^  52,  ^  377. 

4  Ante,  \  54  a. 

5  Cited  in  4  T.  R.  140,  and  1  H.  Black.  677,  682. 


CII.  XIII.]  FOREIGN   GUARDIANSHIPS.  839 

vocally  decided  the  other  way.  Whether  this  decision 
has  since  been  acted  upon  in  England  does  not  dis- 
tinctly appear.'  It  has  certainly  not  received  any 
sanction  in  America,  in  the  States  acting  under  the 
jurisprudence  of  the  common  law.  The  rights  and 
powers  of  guardians  are  considered  as  strictly  local ; 
and  not  as  entitling  them  to  exercise  any  authority 
over  the  person  or  personal  property  of  their  wards  in 
other  States,  upon  the  same  general  reasoning  and 
policy,  which  have  circumscribed  the  rights  and  author- 
ities of  executors  and  administrators." 

§  500.  In  regard  to  the  other  point,  whether  guar- 
dians appointed  in  foreign  countries  have  any  authority 
over  the  property  of  their  wards,  situate  in  other  coun- 
tries, foreign  jurists  are  generally,  although  not  univer- 
sally, of  opinion  ^  in  respect  to  movable  property,  that 
since  it  is  deemed  to  be  in  the  domicil  of  the  owner, 
the  law  of  the  domicil  is  to  govern,  and  the  rights  and 
powers  of  the  guardian,  tutor,  or  curator  over  it,  ought 
to  be  admitted  to  prevail  everywhere  to  the  same 
extent  as  they  are  acknowledged  by  the  law  of  the 
domicil.^  But  in  respect  to  immovable  property, 
foreign  jurists  as  generally,  although  not  universally, 
maintain  the  doctrine,  (whatever  may  be  the  rule,  as  to 
movable  property,)  that  the  rights  and  authority  of 
guardians  are  circumscribed  by  the  laws  of  the  territory 
of  their  appointment,  and  do  not  extend  to  other  coun- 


1  See  Beattie  v.  Johnstone,  1  Phillips,  Ch.  R.  17  ;  S.  C.  10  Clark  & 
Finnell.  R.  42,  where  the  point  is  ruled  the  other  way. 

~  Morrill  u.  Dickey,  1  John^  Ch.  R.  153 ;  Kraft  v.  Vickery,  4  Gill  & 
Johns,  R.  332. 

3  See  Malenbruch,  Doclr.  Pand.  Lib.  1,  P.  1,  ^  72,  p.  167,  1G8. 

4  Ante,  ^  495  to  ^  49S  ;  4  Burge,  Comm.  on  Col.  and  For.  Law,  Pt,  2, 
ch.  23,  ^  5,  p.  1010,  1011. 


840  CONFLICT    OF    LAWS.  [CH.  XIII. 

tries  where  the  immovable  property  is  situated.  In 
other  words,  the  laws  rei  sitce  are  to  govern ;  and  a 
guardian  in  one  country  can  claim  nothing  in  another, 
except  in  the  form  and  manner,  and  under  the  regula- 
tions prescribed  by  the  local  law.  Burgundus  states 
the  doctrine  with  great  clearness.  Speaking  of  the 
capacity  and  incapacity  of  minors,  he  says ;  Proinde 
confitcndum  est,  si  aliqidd  circa  rem  alterare  minor  velity  id 
pida,  (dienandi  vel  Ivjpotliccandi  facidtatem  exigere,  iU  sane 
veniam  hwpeirari  dehere,  iihi  bona  sunt  sita}  Nam  ct  Con- 
stitutio  Diocletiani  in  alienatione  manifest^  reqidrit  decretum 
Prcesidis  ejus  p^ovincice,  in  quo  pxedium  minoris  est  situm. 
He  then  adds  ;  Nee  immerito  Felinus  scripsit,  si  facienda 
est  dispensatio  respectu  rei,  nan  ejus  ejnscopi  esse  ent,  cid 
persona  sidjccta  est,  sed  ad  eum  spectare  cui  res  sipponi- 
tur.  He  says,  that  a  different  reason  is  given  by  others. 
Cujus  rei  rationem  alii  tr admit,  quia  per  ejusmodi  disjjensa- 
tionem  alteratur,  et  reinstatur  natura  ipsiiis  henejicia  et  non 
persona!^  He  then  states  a  qualification  of  the  doctrine 
in  cases,  where  the  venia  cdatis  is  obtained,  saying ; 
Erc/o,  e  contra,  si  venia  aiatis  in  hoc  duntaxat  impetretur, 
id  actus  personates  minor  celelrare  et  peragere  possit,  veluti 
honorum  suorum  administrationem  conseqid,  contractus  et 
olUgationes  inire,  sane  hoc  casu  postidare  dclelit  a  judice 
domicilii,  cui  in  j^crsonas  plenum  jus  est  attrihutum.^  But 
whether  it  exists  or  not  is  immaterial,  as  Burgundus  in 
another  passage  speaks  directly  on  the  present  point. 
Tfndefere  oUinidt,  id  Judex  domicilii,  idi  et  mohilia,  ratio- 
nesque  et  instrumcnta  reperiuntur,  tutelam   solus   deferat. 


1  Burgundus,  Tract.  1,  n.  12,  p.  23. 

2  Ibid.  n.  13. 

3  Ibid.  n.  14,  p.  21  ;  1  Boullenois,  Observ.  9,  p.  150;  Id.  Observ.  6,  p. 
129. 


CH.  xiil]  foreign  guardianships.  841 

Sed  non  alitcr  tmiversorum  hononim  administrationem  con- 
sequitur,  quam  si  siipersedente  jiidice  situs,  solus  ille  consti- 
tiiatur}  This,  however,  is  a  qualification  by  no  means 
generally  conceded  or  admissible. 

§  500  a.  We  have  already  seen,  that  Hertius,  and 
Matthajus,  and  Paul  Yoet,  and  John  Voet,  hold  the 
opinion,  that  the  guardian  has  not,  by  virtue  of  his 
appointment  in  the  place  of  the  domicil  of  his  ward, 
any  rights  or  authorities  over  the  immovable  property 
of  his  ward  in  a  foreign  country.^  Paul  Voet  in  another 
place  adds ;  Vcrum  a  contractibiis  proprie  sic  dictis,  me 
confer  am  ad  quasi  contractus,  et  quidem  tutelce,  v  el  curat  elce. 
Ubi  sequcntia  examinanda.  Quid  si  piipillo  dandus  sit 
tutor,  illene  dahit,  ulji  pu^illus  domiciliimi  hahet,  an  ubi  bona 
pupilli  immobilia  sita  sunt  ?  Respondeo  ;  Quamvis  regii- 
lariter  ah  illo  Magistratu  detur  tidor,  ubi  pupillus  domici- 
lium  Jiabet,  ubi  parentes  habit  anint ;  etiam  qui  dat  tutor  em, 
eum  primario  p>ersonco,  non  rei  dedisse,  censeatur  ;  adeoque 
is,  qui  simpliciter  datus  est,  ad  res  omnes  etiam  in  diversis 
Provinciis  sitas,  datus  intelligatur  ;  Id  quod  plcrumque  jure 
Romano  obtincbat,  quo  diversanim  Provinciarum  Magistra- 
tus,  uni  suberant  Impcratori.  Ne  tamen  videatur  Judex 
domicilii  quid  extra  territorium  fecisse,  non  prafudicabit 
Judici  loci,  ubi  nonmdla  pupillaria  bona  sita,  quin  et  tutorem 
pupillo  ratione  illorum  bonorwn,  scilicet  inimobilium,  ibidem 
recte  dederit.  JJnde  etiam  si  de  prcediis  minorum  alicnan- 
dis  contentio  ;  si  quidem  in  cdid  sita  sint  Provincid,  tutius 
egerit  tutor,  qui  datus  est  in  loco  domicilii,  si  decretum  ab 
utroque,  Judice  curet  interponi,  et  domicilii  iJupilli,  et  rei 


1  Burgundus,  Tract.  2,  n.  18,  p.  69. 

2  Ante,  ^  497,  498. 

71 


S42  CONFLICT    OF   LAWS.  [CH.  XIIL 

sitcc}  Even  those  jurists  who  contend,  that  permission 
ought  to  be  given  by  the  local  Judge  to  such  a  guar- 
dian to  administer  such  foreign  immovable  property,  at 
the  same  time  concede,  that  without  such  permission 
the  guardian  cannot  exercise  any  rights  or  authorities 
over  it.-  John  Voet  says ;  Non  aiitem  in  loco  originis 
vel  situs  reriim  piipillarium,  sed  tantum  in  loco  domicilii  pii- 
pillaris  tidores  a  loci  illiiis  camera  imjpillari  aid  magistrcdii 
creari,  moris  est ;  cjid  hoc  ipso  dati  inielligimtiir  imiverso  pu- 
pilli  l^cdrimonio,  iibicimque  existenti.  Quod  tamen  ex  comi- 
tate magis,  quam  juris  rigore  sustinetur  ;  cum  in  casu,  quo 
impillus  immohilia  hahet  sita  in  eo  loco,  qui  non  subest  cideni 
magistratui  supremo,  cui  impillns  suhest  ratione  domicilii, 
magistratus  loci,  in  quo  sita  immohilia,  rehus  in  siio  territorio 
existentihis  pecidiarem  posset  tidorem,  dare? 

§  501.  Boullenois,  after  stating,  that  in  France  the 
principal  object  of  guardianship  is  not  so  much  the 
custody  of  the  person,  as  of  property,  adds,  that  it  has 
in  view  the  administration  and  direction  of  property 
{hiens,)  and  that  the  rights,  which  it  grants,  are  all  real 
rights.  La  garde  consiste,  ou  en  droits  de  propriete,  ou  en 
droits  dhisufruit ;  et  il  n'g  a  rien  de  plus  reel,  que  ccs  sortes 
de  droits.  Par  consequent  elle  ne  pent  etre  regie,  que  par 
la  hi  de  la  situation.  Cest  cette  Loi,  qid  donne,  ou  ne  donne 
pas  ;  qui  appelle  certaines  ^^ersonnes,  ou  qid  ne  les  appelle 
pas.  De  Id  il  scmble,  qiHil  faudroit  necessairement  en  con- 
clure,  que  cJiaque  coidume,  qui  admet  la  garde,  et  oil  ily  a 


1  P.  Voet,  de  Statut.  ^  9,  ch.  2,  n.  17;  Id.  n.  19,  p.  270,  271,  edit. 
1715  ;  Id.  p.  329  to  231,  edit.  16G1. 

2  3  Biirge,  on  Col.  and  For.  Law,  Pt.  2,  ch.  23,  p.  1004  to  1007. 

3  J.  Voet,  ad  Pand.  Lib.  26,  lit.  5,  ^  5,  Tom.  2,  p.  188 ;  Id.  Lib.  1,  tit. 
4,  Pt.  2,  ^  3,  7,  Tom.  1,  p.  39,  40.  See  also  other  foreign  jurists  cited, 
3  Burge,Comm.  on  Col.  and  For.  Law,  ch.  23,  p.  1005,  lOOG,  1007. 


CH.    XIII.]  FOREIGN    GUARDIANSHIPS.  843 

des  Mens,  a  settle  le  droit  de  deferer  la  garde,  a  qui  hon  lid 
semhle  ;  et  qiiHl  liy  a  que  ceux,  h  qui  elle  la  defere,  qui  puis- 
sent  aire  gardiens,  quclque  domicile  d'ailleurs,  qu\dent  ceux, 
qui  tontbent  en  garde,  et  ceux,  qui  sont  appelts  a  la  garde} 
He  admits,  that  there  are  jurists  who  assert  the  con- 
trary.^ 

§  502.  Hertius,  as  we  have  seen,  asserts  the  same 
doctrine  as  to  immovable  property.^  Froland  arranges 
himself  on  the  side  of  those  who  assert  the  reality  of 
the  laws  which  respect  guardianship,  distinguishing, 
however,  as  to  the  quality  of  persons  entitled,  the  right 
of  possessing  the  property,  and  the  formalities  accom- 
panying it.'* 

§  502  a.  Dumoulin  holds  the  opinion,  that  the  Lex 
rei  sitcc  is  to  govern  in  all  such  cases ;  and  explains 
himself  with  unusual  fulness  on  the  point.  Aut  statutum 
agit  in  j^crsonam,  et  tunc  non  includit  exteros,  sive  hahiliter, 
sive  inhabiliter  personam,  unde  si  statuto  Jivjus  urhis  cavetur, 
quod  contractus  facti  per  minorem25.  annis  non  valeant  sine 
consensu  suorum  pro^nnquor'iim,  et  authoritate  Judicis,  7ion 
intelligitur,  nisi  de  suhditis  suw  jurisdictioni  per  text.  I.  1, 
in  fin.ff.  de  curat,  et  tutor,  dot.  ah  his.  Unde  minor  dicti 
loci  non  poterit  ctiam  extra  locum  prcedia,  in  eo  terntorio 
sita,  locare  sine  dicta  solemnitate :  Scd  bene  extra  locum  prw- 
dia  alibi  sita.  Quia  in  quantum  agit  in  personam,  restrin- 
gitur  ad  suos  subditos;  et  in  quantum  agit  in  res,  restringi- 
tur  ad  sitas  intra  suum  territoriiun.     Exterus  autem  minor 


1  2  Boullenois,  Observ.  29,   p.  320,   321,   322,   339,    310  ;    3  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  cli.  23,  p.  1001,  1002. 

2  Ibid, 

3  Ante,  ^S497;  1  Hertii  Opera,  De  Collis.  Leg.  4,  n.  8,  p.  123,  124, 
edit.  1737  ;  Id.  p.  175,  edit.  1716. 

•1  1  Froland,  Mem.  ch.  16,  p.  717,  749,  750,  752. 


844  CONFLICT   OF   LAWS.  [CH.  XIIL 

annis  potent  etiam  de  sitis  intra  locum  didi  statidi  etiam 
inter  locum  ilium  disponere  :  Qiiamvis  is,  qui  dolus  est  tutor 
vel  curator  a  suo  corapetenti  judice,  sit  inJiahilitatus  proptei^ 
tutelam,  et  curam  uhique  locorum  pro  honis  ubicumque  sitis. 
Quia  non  est  in  vim  statuti  solius,  sed  in  vim  juris  communis, 
et  per  passivam  interpretationem  legis,  quce  locum  Jmbet 
uhique}  Everhardus  holds  the  same  opinion.  JJhi  ra- 
tione  diversarum  jurisdictionum  et  territoriorum  diversi  ju- 
dices  dant  tidores,  et  uniis  non  intromittat  se  de  territorio  alte- 
rius ;  semper  enim  inspicienda  est  consuetudo  loci,  iibi  res 
sunt  sitce,  maxime  quoad  immohilia? 

§  503.  Lord  Karnes  hiys  down  the  Scottish  doctrine 
to  be,  that  it  is  of  no  importance  in  what  place  curators 
of  minors  are  chosen ;  and  accordingly,  a  choice  made 
in  England  of  curators,  whether  English  or  Scotch,  will 
be  held  effectual  in  Scotland.  He  admits,  that  the 
powers  of  a  guardian  of  a  lunatic  in  England,  are  limit- 
ed, extending  only  to  his  person,  and  not  to  his  estate ; 
or  rather,  that  different  guardians  are,  or  may  be,  ap- 
pointed by  the  Court  of  Chancery  for  each.  But  the 
authority  of  any  guardian  or  curator,  however  appoint- 
ed, in  a  foreign  country,  is  not  understood  by  him  to 
extend  to  any  real  estate  in  Scotland.^ 

§  504.  There  is  no  question  whatsoever,  that,  accord- 
inor  to  the  doctrine  of  common  law,  the  rie-hts  of  foreifrn 
guardians  are  not  admitted  over  immovable  property, 
situate  in  other  countries.  Those  rights  are  deemed  to 
be  strictly  territorial;  and  are  not  recognized  as  having 


1  Molin.  Opera,  Tom.  3,  ad  Cod.  Lib.  I,  tit.  1,  1.  1,  Conclus.  de  Statut. 
p.  556,  edit.  1681  ;  ante,  ^  497,  note.  See  also  Rodenburg,  De  Divers. 
Statut.  tit.  2,  ch.  5,  n.  16  ;  2  Boullenois,  Appx.  p.  47  to  51. 

2  Everhard.  Consil.  185,  n.  3,  p.  406. 

3  2  Karnes,  Equity  B.  3,  ch.  8,  ^  1,  p,  325  ;  Id.  ^  4,  p.  318. 


CH.  XIII.]  FOREIGN   GUARDIANSHIPS.  845 

any  influence  upon  such  property  in  other  countries 
whose  systems  of  jurisprudence  embrace  different  regu- 
lations, and  require  different  duties  and  arrangements.^ 
No  one  has  ever  supposed  that  a  guardian,  appointed 
in  any  one  State  of  this  Union,  had  any  right  to  receive 
the  profits,  or  to  assume  the  possession,  of  the  real 
estate  of  his  ward  in  any  other  State,  without  having 
received  a  due  appointment  from  the  proper  tribunals 
of  the  State,  where  it  is  situate.  The  case  falls  within 
the  well-known  principle,  that  rights  to  real  property 
can  be  acquired,  changed,  and  lost  only  according  to 
the  law  m  sitw.^ 

§  504  a.  The  same  rule  is  applied  by  the  common 
law  to  movable  property,  and  has  been  fully  recognized 
both  in  England  and  in  America.  No  foreign  guardian 
can  virtide  officii  exercise  any  rights,  or  powers,  or  func- 
tions over  the  movable  property  of  his  ward,  which  is 
situated  in  a  different  State  or  country,  from  that,  in. 
which  he  has  obtained  his  letters  of  guardianship.  But 
he  must  obtain  new  letters  of  guardianship  from  the 
local  tribunals,  authorized  to  grant  the  same,  before  he 
can  exercise  any  rights,  powers,  or  functions  over  the 
same.  Few  decisions  upon  the  point  are  to  be  found 
in  the  English  or  American  authorities,  probably  be- 
cause the  principle  has  always  been  taken  to  be  unques- 
tionable, founded  upon  the  close  analogy  of  the  case  of 
foreio;n  executors  and  administrators.^ 


I  See  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  23,  ^  5, 
p.  1009,  1010,  1011. 

'■2  Ante,  ^  424  ;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  23, 
^  5,  p.  1005, 1006, 1009,  1010. 

3  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  2,  ^  5,  p.  1011  ; 
Id.  p.  1010 ;  ante,  ^  499  :  Morrell  v.  Dickey,  1  Johns.  Ch.  R.  153  ;  Kraft 
V.  Vickery,  4  Gill  &  Johns.  R.  332,  340,  341 ;  4  Cowen,  R.  529,  note; 
71* 


846  CONFLICT    OF   LAWS.  [CH.  XIIL 

§  505.  Whether  <a  guardian  has  authority  to  change 
the  domicil  of  his  ward  from  one  country  to  another, 
seeing  that  it  may  have  a  most  important  operation,  as 
to  the  succession  to  his  movable  property,  in  case  of  his 
death,  is  a  matter  which  has  been  much  discussed.  In 
favor  of  the  affirmative  there  are  some  distinguished 
foreign  jurists,  among  whom  we  may  enumerate 
Bynkershoek,  Bretonnier,  Rodenburg,  and  John  Voet. 
Bynkershoek  says  ;  Posse  tiitorem  piqnlli  siii  domicilmn 
mutare,  perinde  ut  potest  parens  superstes,  nescio  qiiisqiiam 
serio  diibitaverit,  si  siiccessionis  legitimce  causa  non  versctnr  ; 
nam  si  licec  versetur,  multa  dlspidatio  est.  JSed  an  licec 
quoqiie  valehmt,  si  superstes  parens  vcl  tutor  domicilium 
minoiis  transferat,  ut  ejus,  intestati  mortui  alia  sit  siiccessio 
quam  antefuit?  He  proceeds  then  to  discuss  the  ques- 
tion, and  comes  to  the  conclusion,  that  he  may.  Sic 
piito.  Scio  impiiberem,  vel  minorem  proprio  marte  non 
recte  domicilinm  smmi  mutare  ;  sed  quid  ni  non  posset,  qui 
eum  reprwsentat,  et  quid  ni  non  posset  cum  omni  effectu,  nisi 
qua  lex  sit,  qucc  impediat  ?  ^  Rodenburg  says ;  Quceranms 
et  illud  quod frecpientioris  est  incursionis  ;  Hollandus  major 
viginti,  minor  viginti  quinque  annis  transfert  domicilium  TJl- 
trajectum,  uhi  vigesimo  anno  tutela  vel  cura  finitur.  Quid 
dicemus  pe?'venturum  ilium  suam  in  tutelam  ?  Piespondi  ex 
facto  consultus  minori  hodic  constituendi  domicilii,  facidta- 
tem  non  esse,  tutori  esse  ;  cpd  ut  contrahere,  ita  et  domicilium 
potest  consiitucre,  quod  collocetur  illud  per  contractum,  de 
quo  mox  latins.  Proinde  in  proposita  mihi  specie,  cum 
mater,  quw  tutrix  essct,  mutato  a  morte  viri  domicilio,  Ultra- 


post,  ^  512,  513.     But  Mr.  Ch.  Walworth  seems  to  have   thought  other- 
wise in  McNamara  v.  Dwyer,  7  Paige,  R.  23G,  241. 

'  Bynkers.  Quest.  Privat.  Juris.  Lib.    1,   ch.   l(j,  p.  174  to  p.  186,  edit. 
1744. 


CH.  XIII.]  FOREIGN    GUARDIANSHIPS.  847 

jedum  concessisset,  ihiqiie  infam  adolevisset :  dixi  ex  Ultra- 
jedinis  legihus  cestimandos  iicrfcdcc  cctatis  annos  ;  dummodo 
f rails  ahsil,  ant  prcejudidum  tcrtii,  extra  quod  vix  est  tit  non 
dixcris  tutori,  maxime  matri  locum  ad  hahitandum,  puiiil- 
liimque  educandiim,  eligendl  Jas  esse,  illudqiie  ipsiim  diibil 
veriti  Batavi  Jurisconsulti  tutori  agnato  auctores  fuerunt,  ut 
stipularetur  a  matre  ilia,  cum  cogitaret  ex  Hollandia  con- 
cedere  Trajedum,  ne  ea  res  iu/aiitis  adspedu  ullo  modo  do- 
micilii mutationem  induceret ;  quamquam  fateor,  si  quid  hoc 
ad  rem  pertinet,  positd  hdc  sententid,  in  potestate  tuioii^ 
fore,  tutelCi  semet  ociics  exucre,  nisi  turn  potitis  super  fraude 
qnwrendum  ford}  John  Yoet  says ;  Plane,  si  etiamnum 
minorennis  sit,patre  vel  matre  vidua  domicilium  mutante, 
filium  etiam  videri  miitasse,  si  et  ipse  translatiis  sit,  nee  ex 
prioris  sed  novi  domicilii,  a  patre  matreve  recenter  constituii, 
jure  censeri  in  duhio  deberc,  rationis  est.  TJtut  enim  liaud 
difficulter  admittendum  sit,  minorennem  non  magis  posse  do- 
micilium mutare,  quam  contraJiendo  se  ohligare :  tamen,  quem- 
admodum  contrahere  auetore  tiitore  permissum  ei  est,  ita  et 
domicilium  cum  patre  matreve,  tanquam  tutelco  ejus  ant  sal- 
tem  educationi  fjrwpositd,  tutorihus  cceteris  non  contradicenti- 
hiis,  mutare  nihil  vetat :  nisi  ex  circiimstantiis  manifestnm 
esset,  talem  domicilii  pupillaris  translationem  in  fraudem 
proximorum,  spem  succcssionis  ex  prioris  domicilii  lege  lia- 
hentinm,  fadam  esse? 

505  a.  Bynkerslioek  thinks  it  impracticable  to  make 
any  such  exception  of  cases  of  fraud  from  the  intrinsic 
difficulty  of  ascertaining,  what  circumstances  shall  con- 
stitute   evidence    of  a   fraudulent  change  of  domicil." 


1  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  1,^6;  2  Boullenois,   Appx. 
p.  57,  58. 

2  J.  Voet,  ad  Pand.  Lib.  5,  lit.  1,  ^  100,  Tom.  1,  p.  347. 

3  Bynkers.  Quest.  Jur.  Priv.  Lib.  1,  ch.  IG,  p.  182,  183,  edit.  1744. 


848  CONFLICT    OF   LAWS.  [CH.   XIIL 

Burgundus  seems  to  hold  with  Bartolus,  that  the  do- 
micil  of  the  guardian  is  also  the  domicil  of  the  minor. 
Puinlli  ipsi  sihi  constituere  domicilium  non  possimt.  Bar- 
tolus aiitcm  ibi  semit  habere  domicilium,  ubi  cum  tidoribus, 
sive  aliter  hahitaverint.  Quce  se^itentia  ita  demiim  mihivera 
videtur,  nisi  in  academiam  studioriim  causa,  vel  alio  profec- 
ti,  remdinendi  animo  ibi  non  steteiint.  Qui  vcniatn  cetatis 
impetravit,  etproprice  negotiationi  commodisque  subservit,  ipse 
sibi  minor  domicilium  instriiere  potest.  Uxor  ibi  censetur 
habere  domicilium,  tibi  maritiis  habitat.  Legitimd  tori  sepa- 
rcdione  facta,  ipsa  sibi  domicilium  instruet.^ 

505  b.  Boullenois  has  spoken  with  so  little  clearness 
and  precision  on  this  subject,  that  it  is  not  very  easy  to 
say  with  entire  exactness,  what  is  his  opinion.  From 
the  best  examination,  which  I  have  been  able  to  make 
of  his  various  discussions  of  this  subject  in  his  different 
works,  he  seems  to  have  thought,  (1.)  That  the  law  of 
the  actual  domicil  of  the  parents  of  a  minor  constituted 
the  rule  to  regulate  the  succession  to  the  minor  if  he 
died  during  his  minority,  although  it  was  not  the  do- 
micil of  his  birth,  but  was  acquired  by  his  parents  af- 
terwards. (2.)  That  the  like  rule  did  not  apply  to  the 
case  of  a  minor  under  tutelage ;  and  that  his  guardian 
could  not  by  a  change  of  domicil  change  the  succession 
to  the  property  of  the  minor.  (3.)  That,  hence,  if  a 
minor,  following  the  change  of  domicil  of  his  parents, 
should  die,  his  movable  estate  would  be  governed  by 
the  law  of  succession  of  the  new  domicil,  if  there  was  no 
fraud  in  the  removal.  (4.)  But  that  there  was  no  rea- 
son, why  a  minor  might  not  be  reputed  domiciled  in 
the  domicil  of  his  guardian,  so  far  as  the  law  of  that 


1  Burgundus,  Tract.  2,  n.  34,  p.  80,  81. 


CH.  xiil]  foreign  gijardianships.  849 

domicil  would  confer  on  him  particular  fliculties  or  pri- 
vileges ;  and  that,  therefore,  if  the  law  of  the  domicil  of 
the  guardian  would  give  him  the  power  of  making  a 
testament  of  his  movables,  he  might  make  one  conform- 
able to  that  law ;  for  it  is  but  just,  that,  in  such  a  case, 
a  person  domiciled  there,  even  although  a  minor,  should 
be  held  subject  to  the  real  laws,  or  laws  in  rem,  of  the 
place,  where  he  is  domiciled  without  fraud.i 


1  Boullenois,  Dissert,  siir  Quest,  de  la  Contrar.  des  Lois,  Quest.  2, 
p.  59  to  62  ;  2  Boullenois,  Observ.  32,  p.  49  to  53.  —  It  may  not  be  unac- 
ceptable to  give  some  extracts  from  Boullenois  in  this  place.  He  says  in 
his  Dissertations  :  En  effet,  il  y  a  pliisieurs  raisons,  pour  lesquelles  le  der- 
nier domicile  du  pere  doit  r^gler  la  succession  mobiliare  du  fils,  lorsqu'il 
decede  en  minority.  La  premiere  est,  que  le  fils  mineur  tombant  sous  la 
puissance  d'autrui,  on  n'a  pas  voulu  qu'il  put  dependre  d'un  Tuleur  de 
changer  I'orde  de  succeder  au  mineur  en  lui  faisant  changer  de  domicile  ; 
en  sorte  qu'on  n'a  pas  cru  qu'un  Tuteur  dut  avoir  la  liberie  de  donner  ou 
d'oter  aux  h^ritiers  pr6somptifs.  La  seconde  est,  qu'un  mineur  h.  raison  de 
sa  minoriie  est  toujours  presume  greve  et  charg6  de  fidei-commis  envers 
les  h6ritiers  de  celui  de  qui  il  a  recju  les  biens  qui  doivent  composer  sa  suc- 
cession, et  un  Tuteur  ne  doit  pas  avoir  le  pouvoir  de  derogcr  a  cette  es- 
pece  de  fidei-commis.  Again  he  says  ;  Sur  le  changement  de  domicile  d'un 
mineur  en  ce  qui  touche  ses  bicns,  il  semble  qu'il  y  auroit  quelque  con- 
sideration a  faire.  II  paroitroit  assez  convenable  que  la  succession  d'un 
mineur  au-dessus  de  la  pleine  puberl6  fut  regime  par  le  domicile  de  ses 
pere  et  mere.  Que  des  qu'il  est  pourvu  par  marriage,  il  puisse  se  choisir 
tel  domicile  que  bon  lui  semblera,  et  que  sa  succession  mobiliare  soit  itj- 
gie  par  ce  domicile.  Que  le  fils  mineur  en  suivant  le  domicile  du  pere,  ou 
de  la  mere  survivante,  sa  succession  mobiliare  soit  pareiilement  assujettie 
aux  Loi.x  de  ce  nouveau  domicile,  pourvu  que  d'ailleurs  il  n'y  ait  point  de 
fraude  :  Que  peut  faire  cle  mieu.x  un  mineur  que  de  continuer  de  vivre  sous 
I'education  de  celui  de  ses  pere  et  mere  que  Dieu  lui  a  conserve, .et  d^s 
qu'il  y  a  prudence  et  justice  dans  cette  conduite,  ce  nouveau  domicile  de- 
vient  une  demeure  juste  et  legitime  pour  le  mineur,  dont  la  succession 
mobiliare  doit  suivre  le  sort.  Que  le  fils  mineur  qui  fait  trafic  de  Mer- 
chandises, et  qui  pour  ce,  s'est  choisi  un  domicile  soit  pareiilement  en  ce 
qui  touche  ses  biens  mobiliers,  assujetti  ;i  la  Loi  du  lieu  qui  a  6l6  le  centre 
de  sa  fortune,  et  cela  paroit  indispensable  quand  le  bien  du  mineur  est  un 
bien  d'industrie.  I!  n'y  a  pas  d'inconveniciit  qu'un  mineur  soit  repute  do- 
micilie  au  domicile  de  son  Tuteur,  quant  aux  faculits  parliculicres  que  la 


850  CONFLICT    OF    LAWS.  [CH.  XIII. 

§  505  c.  On    the  other  hand,  Mornac,   Christinseus, 
Bouhier,  and  Pothier,  maintain  the  opinion  in  unequi- 


Loi  de  ce  domicile  peut  lui  donner  ;  c'est  pour  quoi  si  par  la  Loi  da  do- 
micile de  son  Tuteur  il  a  faculte  de  tester  de  ses  meubles,  il  pourra  tester 
conformeinent  a  cette  Loi.  II  est  juste  dans  ce  casqu'un  domicilie,  meme 
mineur,  subisse  les  Loix  pures  r^elles  du  lieu  ou  il  est  domicilii  sans 
fraude.  Mais  quant  a  son  etat  de  majeur,  ou  de  mineur,  on  ne  sQauroitle 
faire  dependre  que  de  la  Loi  de  son  origine,  par  les  raisons  qui  ont  et6  cy- 
devant  alleguees.  BouUenois,  Diss,  de  la  Contrar.  des  Lois,  Quest.  2, 
p.  59,  61,  62.  In  his  larger  Treatise,  he  says;  Au  surplus,  ce  que  nous 
disons  ici  pour  le  cas  de  la  succession  mobiliare  ab  intestat,  doit-il  avoir 
lieu  pour  le  cas  d'un  testament?  S'il  s'agissoit,  par  exemple,  de  savoir  si 
le  mineur  incapable  de  tester  par  la  Loi  de  son  domicile  de  droit,  le  pour- 
roit  en  verlu  de  la  Loi  de  son  domicile  de  fait.  L'Auteur  des  Observa- 
tions sur  Henrys,  observe  ioco  citato,  que  si  des  enfants  mineurs  sont  mis 
sous  la  tutelle  d'un  Lyonnois  ils  pourront  faire  un  testament,  lorsqu'ils  se- 
ront  parvenus  a  la  pubert6,  parce  que  les  mineurs  suivent,  a  cet  6gard,  le 
domicile  de  leur  tuteur.  II  dit  qu'il  I'a  ainsi  d6cid6  en  consultation,  avec 
M.  Severt,  pour  le  testament  du  sieur  de  Servieres,  fait  a  Page  de  dix-huit 
ans.  Son  pere  s'etoit  mari6  et  6tabli  a  Paris  :  apres  son  d^ces  et  celui  de 
sa  semme,  ses  enfants,  qui  etoient  en  bas  age,  furent  mis  sous  la  tutelle  de 
Charles  Groflier,  leur  oncle  paternel,  domicilie  en  Lyonnois.  Le  sieur  de 
Servieres  fils,  avant  que  de  partir  pour  I'armee,  ou  il  fut  tu6,  fit  son  tes- 
tament au  profit  d'une  de  ses  sceurs  :  il  fut  conteste  par  une  autre  scEur,  et 
la  decision  sut  pour  le  testament.  M.  le  P.  Bouhier,  ch.  21,  n.  4,  n'adopte 
pas  cette  decision,  et  j'avoue  qu'elle  n'est  pas  sans  difficulte.  En  effet, 
puisque  la  Loi  determine  le  domicile  du  mineur,  par  le  domicile  du  p6re, 
je  parle  d'un  mineur  non  lilabli,  pour  quoi  lui  donner  deux  domiciles, 
I'un  pour  r^gler  sa  succession  mobiliare,  et  I'autre  pour  regler  sa  ca- 
pacii6  personnelie  de  tester  ?  II  n'y  a,  comme  nous  venons  de  le 
dire,  que  le  domicile  de  la  personne  qui  puisse  rendre  capable  celui 
qui  est  incapable  ;  et  puisque  le  domicile  du  mineur  est  fixe  au  domi- 
cile du  pere,  comment  celui  de  fait,  qu'il  peut  avoir  partout  ailleurs, 
peut-il  afiecter  sa  personne,  prtf^rablement  a  son  domicile  de  droit  qui  est 
necessairenieiit,  selon  la  Loi,  son  vrai  domicile?  D'ailleurs  un  testament 
apporte  toujours  un  changement  dans  la  succession  legale  du  testateur,  et 
la  Loi  du  domicile  de  droit  qu'a  le  mineur,  ne  lui  permet  pas  de  disposer, 
de  ses  biens,  et  de  changer  rien  dans  sa  succession.  Mais  pour  le  soutien 
de  la  decision  de  MM.  Severt  et  Bretonnier,  deux  savants  Consultants,  ne 
peut-on  pas  r6pondre  que  le  mineur  est  dans  son  devoir,  quand  il  demeure 
avec  son  tuteur  qui  est  charg6  de  son  Education,  qu'il  y  demeure  n6ces- 
sairement  et  sans  fraude?     A  la  bonne  heurc  que  le  domicile  de  son  pere 


CII.  XIII.]  FOREIGN    GUARDIANSHIPS.  851 

vocal  terras,  that  the  domicil  of  a  minor,  so  far  as  it  re- 
gards his  succession  to  his  estate,  cannot  be  changed  by 
his  guardian.  Mornac  says ;  Qncvsitimi  est,  morino  m- 
piiberc,  de  cujiis  bonis  moUUbus  ar/itiir,  quod  spcctari  dcbecd 
illiiis  domicilimn,  idnun  patris  ct  mcdris,  cm  iutoris,  ajnid 
quern  defunctiis  est ;  atqiie  id,  quia  locus  domicilii parentum, 
et  locus  domicilii  tuioris  contrarias,  quoad  successiones  mobi- 
lium,  divcrsasque  comuctudincs  fcrani.  Videbaiur  nonnullis 
consiilucndum  domicilium  i.'i  cedibus  itdoris,  uk  qid  patrem 
referret.  Prcevaluit  vero  conim  sententia,  qid  domicilium 
minoris  prcese^iim  eo  casu  in  loco  originis,  id  est,  in  cvdibus 
paternis  ac  maternis  collocandmn  dicercnt.  Cum  cnim  do- 
micilium quaiuor  modis  conirahi  soleat,  natura,  ac  origine, 
item  voluntate,  ac  concilio,  deinde  conventione,  aid  ex  necessi- 
tate muneris.  Solum  ex  his  naturale  domicilium  minori  sii- 
perest,  locus  scilicet,  in  quo  ipse  creverit,  parentesque  defece- 
rint ;  absurdumque  aliiidfuerit  affingere  minori  in  ceteris, 


regie  sa  succession  ab  intestat ;  c'est  I'interct  dea  heritiers  qui  I'a  voulu 
ainsi,  et  c'est  pour  cela  qu'il  relient  le  domicile  de  son  pere.  Mais  si  le 
marriage,  si  I'emancipation  permeltent  a  un  mineur  dc  changer  de  domi- 
cile, comme  en  convient  M.  Bouhier  luim(^me,  et  que  dans  cecas,  le  mineur 
puisse  tester  conform6ment  a  la  Loi  du  domicile  qu'il  s'est  clioisi,  pourquoi 
ne  veut-on  pas  pareille  chose  dans  le  cas  ou  le  mineur  passe,  par  n6cessit^, 
et  sans  fraude,  dans  le  domicile  de  son  tuteur  1  II  est  vrai  que  dans  le 
cas  du  marriage  et  de  I'emancipation,  la  succession  mobiliare  de  ce  mineur 
se  r6glera  par  la  Loi  de  son  domicile  de  choix,  et  que  je  n'en  dirai  pas  de 
meme  par  rapport  a  un  mineur  qui  n'est  ni  mari6,  ni  eraancipe  ;  mais  ce 
que  je  ne  dirai  pas  pour  le  cas  de  la  succession  ab  intestat,  parce  qu'il  y  a 
une  Jurisprudence  form6e  a  cet  egard,  je  puis  le  dire  pour  le  cas  du  tes- 
tament, parce  que  la  Loi  n'a  rien  decide  ]a-dessus,  et  qu'il  semble  juste  de 
laisser  t\  un  mineur,  que  la  mort  pr6vient,  une  capacity  que  lui  donne  la 
Loi  ou  il  demeure  actuellement,  sans  fraude.  Neanmoins  le  premier  avis 
me  paroit  le  meilleur  ;  un  mineur  hors  le  domicile  dc  son  pere,  avec  son 
tuteur,  habite  avcc  lui  ;  mais  il  n'est  pas  proprement  domicilie  avec  lui  ; . 
il  s^journe  en  attendant  sa  majority  ;  c'est  un  plaideur  qui  attend  U\  que  le 
temps  lui  fasse  gagner  son  proems."  2  Boullenois,  Observ.  32,  p.  51  to 
53  ;  ante,  ^  44,  note  2,  p.  44. 


852  CONFLICT    OF    LAWS.  [CH.  XIII. 

qiiod  ipse  per  cotatem  non  liabeat  ilUgendi  nempe  domicilii 
consilium.  Inio  et  pi'cestaretur  ansa  interdwn  tiitoribus 
fraiidandl  veros  moUllum  minoris  intereimtis  hceredes,  irans- 
fercnilbus  scilicet  domlclllum  in  loca,  qidhus  successura  sibi 
vlderent  ex  patrils  morlhiis,  intereiinte  valetitdlncirio  mlnore 
deslderia}  Christinceus  adopts  the  very  language  of 
Mornac  on  tliis  subject.^  Bouliier  is  equally  direct  and 
positive ;  holding,  that  the  minor  retains  the  domicil  of 
his  parents,  and  that  it  cannot  be  changed  by  his  guar- 
dian. He  says  that  the  inviolable  rule  of  the  law  in 
Burgundy  is,  that  the  domicil  of  minors  in  respect  to 
the  succession  to  their  property,  cannot  be  changed  by 
their  guardians  during  their  minority  ;  and  he  reasons 
out  the  doctrine  at  large.^  Pothier  takes  a  distinction 
between  the  case  of  the  change  of  the  domicil  of  a 
parent  from  the  change  of  domicil  of  a  guardian ; 
and  holds,  that  in  the  former  case,  if  a  change  is 
made  without  fraud,  the  minor  follows  the  domicil  of 
his  parents  and  of  the  survivor.  But  in  the  case  of  a 
guardian  no  such  effect  follows  ;  for  the  minor  is  no 
part  of  the  family  of  the  guardian,  but  is  like  a  stranger 
there,  and  only  for  a  time  {ad  iempiis.)  ^ 


1  Mornacci,  Observ.  ad  Cod.  Lib.  3,  tit.  20,  Tom,  3,  p.  558,  edit. 
1721. 

2  Christin.  Decis.  176,  Tom.  2,  p.  204. 

3  Bouhier,  Cout.  de  Bourg.  ch.  21,  ^  3,  p.  383  ;  Id.  ch.  23,  ^  100  to 
§  167,  p.  441,  452. 

4  Bouhier,  Coulume  d'Orleans,  Introd.  n.  17.  lie  uses  there  the  following' 
language.  "  II  nous  suflit  de  dire,  que  les  mineurs  ne  composent  pas  la 
famille  de  leur  tuteur,  comme  Ics  enfans  composent  la  famille  de  Icur  p^re: 
ils  sont  dans  la  maison  de  leur  tuteur  comme  dans  une  maison  etrangere  ; 
ils  y  ont  ad  tempus,  pour  le  temps  que  doit  durer  la  tutelle  ;  par  cons6- 
quent  le  domicile  de  leur  tuteur  n'est  pas  leur  vrai  domicile,  et  ils  ne  pea- 
vent  6lre  census  en  avoir  d'autreque  le  domicile  paternel,  jusquVi  ce  qu'ils 
soient   devenus  en  age  de  s'en  etablir  un  eux-m^mes  par  leur  propre 


CH.   XIII.]  FOREIGN   GUARDIANSHIPS.  853 

§  506.  The  same  question  has  occurred  in  England  ; 
and  it  was  on  that  occasion  held,  that  a  guardian  may 
change  the  domicil  of  his  ward,  so  as  to  affect  the  right 
of  succession,  if  it  is  done  lonci  fide  and  without  fraud.^ 
In  that  case  the  father,  a  native  of  England,  died  intes- 
tate, domiciled  in  Guernsey,  leaving  a  widow  and  infant 
children  by  her,  and  also  by  a  former  wife.  The  widow, 
after  his  death,  was  appointed  guardian  of  her  own  child- 
ren, and  in  conjunction  with  the  guardian  of  the  child- 
ren of  the  first  marriage,  sold  their  estate  in  Guernsey, 
and  invested  the  amount  in  the  English  funds,  and  af- 
terwards removed  to  England  with  the  children.  On 
the  death  of  some  of  the  children  under  age,  the  ques- 
tion arose,  whether  their  shares  were  distributable  by 
the  law  of  England,  or  by  that  of  Guernsey ;  and  it 
was  decided  by  the  Master  of  the  Rolls  (Sir  William 
Grant,)  that  it  was  to  be  by  the  law  of  England.  On 
that  occasion  the  learned  Judge  said :  "  Here  the  ques- 


choix,  el  qu'ils  I'aient  effectivement  6tabli.  II  n'en  est  pas  de  meme  de  la 
mere :  la  puissance  paternelle  ttant,  dans  notre  Droit,  difKrent  en  cela  du 
Droit  Ronfiain,  conamune  au  pere  et  a  la  m6re,  la  mere,  apres  la  mort  de 
son  mari,  succede  an  droits  et  k  la  qualii6  de  chef  de  la  famille,  qu'avoit 
son  mari  vis-a-vis  de  leurs  enfans :  son  domicile,  quelque  part  qu'elle  juge 
de  le  transf6rer  sans  fraude,  doit  done  etre  celui  de  ses  enfans,  jusqu'A  ce 
qu'ils  aient  pu  s'en  choisir  un,  qui  leur  soit  propre.  II  y  auroit  fraude,  s'il 
ne  paroissoit  aucune  raison  de  sa  translation  de  domicile,  que  celle  de  se 
procurer  des  avantages  dans  les  successions  mobiliares  de  ses  enfans.  Les 
enfans  suivent  le  domicile,  que  leur  m^re  s'6tablit  sans  fraude,  lorsque  ce 
domicile  lui  est  propre,  et  que,  demeurant  en  viduit6,  elle  conserve  la  quali- 
ty de  chef  de  famille  :  mais  lorsqu'elle  se  remarie,  quoiqu'elle  acqu6rie  le 
domicile  de  son  second  mari  en  la  famille  duquel  elle  passe,  ce  domicile  de 
son  second  mari  ne  sera  pas  celui  de  ses  enfans,  qui  ne  passent  pas  comme 
elle  en  la  famille  de  leur  beau-pere  ;  C'est  pourquoi  ils  sont  census  conti- 
nuer  d'avoir  leur  domicile  au  lieu  ou  I'avoit  leur  more  avant  que  de  se  re- 
marier,  comme  ils  s^roient  census  le  conserver,  si  elle  ttoit  morte." 

'  Polinger  v.  Wightman,  3  Meriv.  R.  07  ;  Robertson  on  Personal  Suc- 
cession, l'J7  to  202. 

CONFL.  72 


854  CONFLICT    OF  LAWS.  [CH.  XIIL 

tion  is,  whether,  after  the  death  of  the  father,  children, 
remaining  under  the  care  of  the  mother,  follow  the  do- 
micil  which  she  may  acquire,  or  retain  that  which  their 
father  had  at  his  death,  until  they  are  capable  of  gain- 
ing one  by  acts  of  their  own.  The  weight  of  authority 
is  certainly  in  favor  of  the  former  proposition.  It  has 
the  sanction  both  of  Yoet  and  Bynkershoek ;  the  for- 
mer, however,  qualifying  it  by  a  condition,  that  the  do- 
micil  shall  not  have  been  changed  for  the  fraudulent 
purpose  of  obtaining  an  advantage  by  altering  the  rule 
of  succession.  Pothier,  whose  authority  is  equal  to  that 
of  either,  maintains  the  proposition,  as  thus  qualified. 
There  is  an  introductory  chapter  to  his  treatise  on  the 
Custom  of  Orleans,  in  which  he  considers  several  points, 
that  are  common  to  all  the  customs  of  France,  and, 
among  others,  the  law  of  domicil.  He  holds,  in  opposi- 
tion to  the  opinion  of  some  jurists,  that  a  tutor  cannot 
change  the  domicil  of  his  pupil ;  but  he  considers  it  as 
clear,  that  the  domicil  of  the  surviving  mother  is  also 
the  domicil  of  the  children,  provided  it  be  not  with  a 
fraudulent  view  to  their  succession,  that  she  shifts  the 
place  of  her  abode.  And  he  says,  that  such  fraud 
would  be  presumed,  if  no  reasonable  motive  could  be 
assigned  for  the  change.  There  never  was  a  case,  in 
which  there  could  be  less  suspicion  of  fraud  than  the 
present.  The  father  and  mother  were  both  natives  of 
England.  They  had  no  long  residence  in  Guernsey  ; 
and  after  the  father's  death,  there  was  an  end  of  the 
only  tie  which  connected  the  family  with  that  island. 
That  the  mother  should  return  to  this  country,  and 
bring  her  children  with  her,  was  so  much  a  matter  of 
course,  that  the  Aict  of  her  doing  so  can  excite  no  sus- 
picion of  an-  improper  motive.  I  think,  therefore,  the 
Master  has  rightl}^  found  the  deceased  children  to  have 


CH.    XIII.]  FOREIGN   GUARDIANSHIPS.  855 

been  domiciled  in  England.  It  is  consequently  by  the 
law  of  this  country  that  the  succession  to  their  per- 
sonal property  must  be  regulated."  '     This  doctrine  has 


1  Polluter  u.  Wightman,  3  Meriv.  R.  79,  80. — Mr.  Burge  on  lliis 
subject  remarks  :  "  The  doniicil  of  choice  being  that  which  the  person 
himself  establishes,  it  can  only  be  acquired  by  him  who  is  sui  juris.  It 
cannot,  tiierefore,  be  acquired  by  a  lunatic  or  minor.  The  domicil  of  the 
father,  or  of  the  mother,  being  a  widow,  is  that  of  the  child,  and  a  change 
by  either  of  those  parents  of  their  former  domicil,  would  necessarily  ope- 
rate as  a  chanore  of  the  child's  domicil.  It  is,  however,  only  during  the 
mother's  widowhood,  that  she  could  change  the  domicil  of  her  infant. 
The  domicil,  which  she  acquired  on  her  second  marriage  would  not  be- 
come that  of  the  infant;  but  his  domicil  would  continue  to  be  that,  which 
the  mother  possessed  previously  to  her  second  marriage.  The  power 
which  the  parent  thus  possesses,  of  changing  the  domicil  of  his  child,  is 
assimilated  to  that  which  the  guardian  of  an  infant  possesses,  of  binding 
him  by  contracts,  entered  into  by  him  on  behalf  of  the  infant.  But  this 
power,  it  is  said,  must  be  exercised  by  the  parent  bona  fide.  If  he 
changed  the  domicil  of  the  child,  who  was  sick,  with  no  other  apparent 
objection  than  that  of  removing  him  from  a  place  in  which,  according  to 
the  law  of  succession  there  prevailing,  the  parent  would  not  succeed  to  the 
child's  estate,  to  another  place,  which  admitted  the  parent  to  such  suc- 
cession, the  removal  would  be  deemed  a  fraud  on  the  rights  of  those  who 
would  have  succeeded,  if  no  such  removal  had  taken  place,  and  would  not 
be  allowed  to  prevail.  But  if  the  health  of  the  child  was  such,  as  to  af- 
ford no  expectation  of  his  death,  or  if  there  was  any  reasonable  motive  for 
the  removal,  or,  indeed,  if  the  child  had  attained  an  age  when,  by  the  law 
of  the  place  of  his  domicil,  he  had  the  power  of  making  a  testament,  in 
which  latter  case  there  could  be  no  ground  for  presuming  any  interested 
motive  on  the  part  of  the  parent  in  changing  his  domicil,  the  removal  could 
not  be  impeached."  1  Burge,  Conrim.  on  Col.  and  For;  Law,  Pt.  1 ,  ch.  2, 
p.  3B,  39.  Notwithstanding  this  weight  of  authority,  which,  however, 
with  one  exception,  is  applied  solely  to  the  case  of  parents,  or  a  surviving 
parent,  there  is  much  reason  to  question  the  principle  on  which  the  de- 
cision is  founded,  when  it  is  obviously  connected  with  a  change  of  a  suc- 
cession to  the  property  of  the  child.  In  the  case  of  a  change  of  domicil  by 
a  mere  guardian,  not  being  a  parent,  it  is  extremely  difficult  to  find  any 
reasonable  principle  on  which  it  can  be  maintained,  that  he  can,  by  any 
change  of  domicil,  change  the  right  of  succession  to  the  minor's  property. 
The  reasoning  of  Bynkershoek  upon  the  point  is  very  unsatisfactory,  while 
that  of  Mornac,  Bouhier,  and  Pothicr,  has  solid  reason  and  justice  to  sus- 
tain it.     See  Robertson  on  Succession,  p.  19(3  to  203. 


856  CONFLICT   OF   LAWS.  [CH.  XIII. 

also  been   recognized   as    the  true  doctrine  in  Ame- 
rica.^ 

§  507.  Secondly ;  in  relation  to  executors  and  admin- 
istrators. According  to  the  Koman  law,  which  made 
no  distinction  in  this  respect  between  movable  and  im- 
movable property,  the  title  "  heir,"  was  indiscriminately 
applied  to  every  person,  who  was  called  to  the  succes- 
sion, whether  he  was  so  called  by  the  act  of  the  party, 
or  by  operation  of  law.  Thus,  the  person,  who  was 
created  universal  successor  by  a  will,  was  called  the 
testamentary  heir  {hceres  f actus,)  and  the  next  of  kin  by 
blood,  in  cases  of  intestacy,  was  called  the  heir  at  law 
(Jueres  natus)  or  heir  by  intestacy.  The  heir,  whether 
consisting  of  one  or  more  persons,  and  whether  testa- 
mentary or  by  intestacy,  was  entitled  by  succession  to 
all  the  estate  of  the  deceased,  whether  it  was  real  or 
personal;  and  he  was  chargeable  with  all  the  burdens 
and  debts  due  from  him.^     But  inasmuch  as  the  suc- 


1  Guier  v.  O'Daniel,  1  Binn.  R.  349,  note  ;  Cutts  v.  Haskins,  9  Mass. 
543  ;  Holyoke  v.  Haskins,  5  Pick.  R.  20. 

2  1  Domat,  B.  1,  tit.  1,  p.  557  ;  Id.  ^  l,n.  1,  2,  p.  558.  —  Domat  says, 
that  in  France,  in  the  Provinces  which  are  governed  by  the  testamentary 
law,  and  not  by  the  Roman  Law,  (Droit  ecrit)  the  title  of  heirs  is  given 
only  to  the  heirs  by  blood,  or  heirs  at  law,  and  that  the  testamentary  heirs 
are  called  universal  legataries.  But  this  distinction  is  merely  nominal, 
and  the  same  rules  are  applied  to  the  universal  legataries,  as  to  ihe  heirs 
by  blood.  1  Domat,  B.  1,  tit.  1,  p.  557,  558.  Erskine  in  his  Institutes, 
B.  2,  tit.  2,  ^  3,  p.  192,  says,  that  in  Scotland,  "Heritable  subjects  are 
those  (immovables,)  which  on  the  death  of  ihe  proprietor  descend  to  the 
heir;  and  movables,  those  which  go  to  executors,  who  are  on  that  account 
sometimes  styled  haeredes  in  mobilibus.  It  may  be  also  observed,  that 
those  who  undertake  to  gather  in  and  distribute  among  such  as  ate  in- 
terested in  the  succession  the  movable  estate  of  a  person  deceased,  in  vir- 
tue of  a  nomination,  either  by  the  testator,  or  by  the  Judge,  frequently 
get  the  name  of  executors,  because  it  is  their  office  to  execute  the  last 
will  of  the  deceased."     See  Id.  B.  3,  tit.  9,  ^  1,  2,  26. 


CH.  XIII.]  FOREIGN   ADMINISTRATIONS.  857 

cession  in  either  case  might  be  onerous,  as  well  as  pro- 
fitable, the  law  allowed  the  heir,  whether  he  were  so  by 
testament,  or  by  intestacy,  to  renounce  the  inheritance 
if  he  pleased ;  or  he  might  accept  it  with  the  benefit  of 
an  inventory,  the  effect  of  which  was  to  exonerate  the 
heir  from  any  farther  liability,  than  the  amount  of  the 
assets,  or  property  inventoried.^  These  explanations 
are  important  in  order  fully  to  understand  the  reason- 
ings of  foreign  jurists,  and  to  apply  them  to  the  present 
subject ;  for  the  civil-law  distinctions  everywhere  per- 
vade the  jurisprudence  of  continental  Europe. 

§  508.  It  will  be  at  once  seen,  that  the  executor 
under  the  common  law  in  many  respects  corresponds 
with  the  testamentary  heir  of  the  civil  law ;  and  that 
the  administrator  in  many  respects  corresponds  with 
the  heir  by  intestacy.  The  principal  distinction  be- 
tween them,  which  is  here  important  to  be  considered, 
is,  that  executors  and  administrators  have  no  right 
except  to  the  personal  estate  of  the  deceased ;  whereas 
the  Roman  heir  was  entitled  to  administer  both  the 
real  estate  and  personal  estate ;  and  all  the  assets  were 
treated  as  of  the  same  nature,  without  any  distinction 
of  equitable  assets,  or  of  legal  assets.^ 

§  509.  From  what  has  already  been  said,  the  heir, 
whether  testamentary,  or  by  intestacy,  of  immovable 
property,  can  take  only  according  to  the  Lex  loci  rci ; 
or,  in  other  words,  he  is  not  admissible  as  heir,  so  as  to 
administer  the  estate  in  any  foreign  country,  unless  he 
is  duly  f|ualified  according  to  the  principles,  rules,  and 
forms  of  the  local  law.^     In  this  respect,  he  does  not 


1  1  Domat,  B.  1,  tit.  1,  §  4,  n.  3,  4,  p.  593. 

2  1  Brown,  Civil  and  Adm.  Law,^  344,  note. 

3  See  2  Karaes,  Eq.  B.  3,  ch.  8,  ^  3,  p.  332  ;  Vattel,B.  2,  cli.  8,  ^  109, 

72* 


858  CONFLICT   OF   LAWS.  [CH.    XIII. 

differ,  either  in  regard  to  rights,  or  to  responsibilities, 
from  an  heir  or  devisee,  chargeable  at  the  common  law, 
or  by  statute,  with  the  bond  debts  of  his  ancestor  or 
testator.  It  is  for  the  same  reason,  that  a  power  to  sell 
immovable  property,  given  to  an  executor,  cannot  be 
executed,  unless  upon  due  probate  of  the  will  in  the 
place  where  the  property  is  situate,  and  showing  that 
it  may  be  lawfully  done  by  the  Lex  loci  rei  sitce}  And 
if  the  party  claims,  not  under  a  power,  but  as  a  devisee, 
in  trust  to  sell  it  for  the  payment  of  debts,  it  is  also  ne- 
cessary to  have  a  like  probate  of  the  will.  But  it  is 
not  necessary,  in  the  latter  case,  to  take  out  letters  of 
administration,  although  the  devise  be  in  trust  to  the 
party  by  the  description  of  executor ;  for  in  such  case 
he  takes  as  devisee  and  not  as  executor  ;  and  his  title 
is  under  the  will,  and  not  under  the  letters  testament- 
ary.2 

§  510.  But  in  regard  to  movable  estate  a  like  rule 
does  not  necessarily  prevail  in  foreign  countries,  go- 
verned by  a  jurisprudence  which  is  drawn  from,  or 
modelled  upon,  the  civil  law;  for  movables  being 
treated  as  having  no  situs,  and  to  be  governed  by 
the  law  of  the  domicil  of  the  testator  or  intestate,  the 
title  of  the  heir,  taking  its  effect  directly  from  that  law, 
is,  or  at  least  may,  consistently,  be  held  to  carry  the 
right  to  such  property,  wherever  it  may  be  locally 
situated,  in  the  same  manner  as  the  title  would,  or  might 
pass,  by  an  assignment  by  the  owner  by  an  act  inter 
vivos? 


no,  111 ;   1  Boullenois,  Obserr.  17,  p.  242  ;  Id.  Pr.  G6n.  37,  p.  9;  Doe 
dem.  Lewis  v.  McFarland,  9  Cranch,  151. 

1  Wells  V.  Cowper,  2  Hamm.  R.  124. 

2  Doe  dem.  Lewis  v.  McFarland,  9  Cranch,  151. 

3  2  Kames,  Equity,  B.  3,  ch.  8,  ^  4. 


CH.  XIII.]  FOREIGN   ADMINISTRATIONS.  859 

§  511.  Lord  Karnes  seems  to  take  a  distinction  be- 
tween the  case  of  a  testamentary  heir  and  that  of  an 
heir  by  intestacy,  asserting  that  the  nomination  of  an 
executor  (hares  de  mohiUhus,  or  hccres  Jidticiartus^)  by 
the  testator  in  his  testament,  as  to  his  movables,  is  ef- 
fectual all  the  world  over,  jure  gentium,  and  will  be  sus- 
tained in  Scotland ;  whereas  letters  of  administration  in 
a  foreign  country  are  strictly  territorial,  and,  when 
granted  in  a  foreign  country,  arc  not  recognized  in 
Scotland,  unless  they  are  confirmed  there  by  a  proper 
judicial  proceeding.^  It  may  be  so  ;  but  Erskine  lays 
it  down  as  clear  law,  that  in  Scotland  neither  executors 
nor  administrators,  foreign  or  domestic,  are  entitled  to 
administer  the  estate  of  the  deceased,  until  they  have 
been  duly  confirmed  by  the  competent  Judge.^  What, 
perhaps.  Lord  Kames  meant  to  say,  was,  that  the  title 
of  executor  was  a  good  title,  jure  gentium,  and  when  it 
was  established  in  the  manner,  and  by  the  process  pre- 
scribed by  the  law  of  the  place  where  it  was  sought  to 
be  exercised,  it  ought  to  be  held  of  universal  obligation. 
And  so  it  probably  is  in  all  civilized  nations,  except 
such,  (if  any  such  there  now  are,)  as  adopt  the  Droit 
d'aubcdnc,  and  confiscate  the  movable  property  of  all 
foreigners  dying,  and  leaving  such  property  within 
their  territories. 

§  512.  In  regard  to  the  title  of  executors  and  ad- 
ministrators, derived  from  a  grant  of  administration  in 
the  country  of  the  domicil  of  the  deceased,  it  is  to  be 
considered  that  that  title  cannot,  de  jure,  extend,  as  a 


1  Ersk.  Inst.  B.  3,  tit.  9,  {>  2,  26. 

2  2  Kames,  Equity,  B.  3,  ch.  8,  ^  3  ;  Id.  ^  4,  p.  347,  348. 

3  Ersk.  Inst.  B.  1,  tit.  9,  §  27,  29.     See  Robertson    on  Succession, 
p.  263  to  p.  273. 


860  CONFLICT    OF   LAWS.  [CH.  XIII. 

matter  of  riglit,  beyond  the  territory  of  the  government 
which  grants  it,  and  the  movable  property  therein.  As 
to  movable  property,  situated  in  foreign  countries,  the 
title,  if  acknowledged  at  all,  is  acknowledged  e.v  comi- 
tcde ;  and  of  course  it  is  subject  to  be  controlled  or  mo- 
dified, as  every  nation  may  think  proper,  with  reference 
to  its  own  institutions,  and  its  own  policy,  and  the 
rights  of  its  own  subjects.  And  here  the  rule,  to  which 
reference  has  been  so  often  made,  applies  with  great 
strength,  that  no  nation  is  under  any  obligation  to  en- 
force foreign  laws,  prejudicial  to  its  own  rights,  or  to 
those  of  its  own  subjects.  Persons,  domiciled  and 
dying  in  one  country,  are  often  deeply  indebted  to 
foreign  creditors,  living  in  other  countries,  where  there 
are  personal  assets  of  the  deceased.  In  such  cases  it 
would  be  a  great  hardship  upon  such  creditors  to  allow 
the  original  executor  or  administrator  to  withdraw 
those  funds  from  the  foreign  country,  without  the  pay- 
ment of  such  debts,  and  thus  to  leave  the  creditors  to 
seek  their  remedy  in  the  domicil  of  the  original  execu- 
tor or  administrator,  and  perhaps  there  to  meet  with 
obstructions  and  inequalities  in  the  enforcement  of 
their  own  rights  from  the  peculiarities  of  the  local  law. 
§  513.  It  has  hence  become  a  general  doctrine  of  the 
common  law,  recognized  both  in  England  and  America, 
that  no  suit  can  be  brought  or  maintained  by  any  exe- 
cutor or  administrator,  or  against  any  executor  or  ad- 
ministrator, in  his  official  capacity,  in  the  Courts  of  any 
other  country,  except  that  from  which  he  derives  his 
authority  to  act  in  virtue  of  the  probate  and  letters  of 
administration  there  granted  to  him.^     But  if  he  de- 


1  Bond  V.  Graham,  1  Hare,  R.  482 ;  Silver  v.  Stein,  9  Eng.  Law  and 
Eq.  R.  216;  Vermilya  v.  Beatty,  6  Barbour,  431  ;  Smith  v.  Webb,  1 
Barbour,  230. 


CH.  xiil]  foreign  administrations.  861 

sires  to  maintain  any  suit  in  any  foreign  country, 
he  must  obtain  new  letters  of  administration,  and 
give  new  security  according  to  the  general  rules 
of  law  prescribed  in  that  country,  before  the  suit  is 
brought.^     So,  on  the  other  hand,  if  a  creditor  wishes 


1  Preston  v.  Ld.  Melville,  8  Clark  &  Fin.  1, 12;  Whyte  v.  Rose,  3 
Adolp.  &  Ell.  New  R,  498,  507  ;  Spratt  v.  Harris,  4  Hagg.  Eccles.  Rep. 
403  ;  Price  v.  Dewhurst,  4  Mylne  &  Craig,  76.  The  authorities  to  this 
point  are  now  exceedingly  numerous  and  entirely  conclusive.  See  Lee  v. 
Moore,  Palmer  R.  163  ;  Tourton  v.  Flower,  3  P.  Will.  369,  370  ;  Law- 
rence V.  Lawrence,  3  Barb.  Ch.  R.  71  ;  Thorne  v.  Watkins,  2  Yes.  35  ; 
Atty.  Gen.  v.  Cockrell,  1  Price,  R.  179;  Burn  v.  Cole,  Ambler,  R.  416  ; 
Lowe  V.  Fairlie,  2  Madd.  R.  101;  1  Hagg.  Eccl.  R.  93,  239  ;  Mitford's 
Plead.  177  (4th  edit.)  ;  Fenwick  v.  Sears,  1  Cranch,  259 ;  Dixon's  Exe- 
cutors V.  Ramsay's 'Executors,  3  Cranch,  319,  323;  Kerr  v.  Moon,  9 
Wheaton,  R.  565;  Armstrong  v.  Lear,  12  Wheaton,  R.  169  ;  Thompson 
V.  Wilson,  2  N.  Hamp.  R.  291  ;  Dickinson's  Administrator  v.  McCrow,  4 
Randolph,  R.  158;  Glenn  v.  Smith,  2  Gill  &  Johns.  R.  493;  Stearns  v. 
Burnham,  5  Greenleaf,  R.  261  ;  Goodwin  v.  Jones,  3  Mass.  R.  514  ;  Bor- 
den V.  Borden,  5  Mass.  R.  67;  Stevens  v.  Gaylord,  11  Mass.  R.  256; 
Langdon  v.  Potter,  11  Mass.  R.  313  ;  Dangerfield  v.  Thurston,  20  Martin, 
E.  232  ;  Riley  v.  Riley,  3  Day,  Conn.  Cas.  74;  Champlin  v.  Tilley,  Id. 
303  ;  Trdcothick  v.  Austin,  4  Mason,  R.  16,  32  ;  Ex  parte  Picquet,  5  Pick. 
65;  Holmes  v.  Remsen,  20  Johns.  R.  229,  265  ;  Smith,  Administrator  v. 
The  Union  Bank  of  Georgetown,  5  Peters,  R.  518  ;  Campbell  v.  Tousey,  7 
Cowen,  R.  64  ;  Logan  v.  Fairlie,  2  Sim.  &  Stu.  285  ;  Alty  v.  Bouwens,  4 
Mees.  &  Welsh.  171,  192,  193  ;  Tyler  v.  Bell,  1  Keen,  R.  826,  829  ;  S.  C. 
2  Mylne  &  Craig,  89,  109.  On  this  occasion  Lord  Cottenham  said  : 
"  That  an  estate  cannot  be  administered  in  the  absence  of  a  personal  re- 
presentative, and  that  such  personal  representative  must  obtain  his  right  to 
represent  the  estate  from  the  ecclesiastical  court  in  this  country,  has,  I  be- 
lieve, never  before  been  doubted.  The  cases  of  Tourton  v.  Flower,  (3  P. 
Wms.  369)  ;  Atkins  v.  Smith,  (2  Atk.  63)  ;  Swift  v.  Swift,  (1  Ball  & 
B.  326)  ;  Attorney-General  v.  Cockerill,  (1  Price,  165);  Lowe  v.  Fairlie, 
(2  Madd.  101)  ;  Logan  v.  Fairlie,  (2  Sim.  &  Stu.  284)  ;  all  proceed  upon 
this,  that  the  Courts  in  this  country,  for  the  security  of  property,  will  not 
administer  the  property  of  a  person  deceased,  in  the  absence  of  a  person 
authorized  to  represent  the  estate  ;  and  that  they  look  only  to  the  judgment 
of  the  ecclesiastical  courts  in  this  country,  in  granting  probate  or  letters  of 
administration,  to  ascertain,  who  are  so  authorized;  and  it  is  immaterial 
what  ecclesiastical  court  in  this  country,  has  granted  probate,  or  letters  of 
administration,  provided  the  state  of  the  property  was  such  as  to  give  it 


862  CONFLICT   OF   LAWS.  [CH.  XIII. 

a  suit  to  be  brought  in  any  foreign  country,  in  order  to 
reach  the  effects  of  a  deceased  testator  or  intestate, 
situated  therein,  it  will  be  necessary,  that  letters  of  ad- 
ministration should  be  there  taken  out  in  due  form 
according  to  the  local  law,  before  the  suit  can  be  main- 
tained ;  for  the  executor  or  administrator  appointed  in 
another  country  is  not  suable  there,  and  has  no  positive 
right  to  or  authority  over  those  assets,  neither  is  he 
responsible  therefor.  The  right  of  a  foreign  executor  or 
administrator  to  take  out  such  new  administration  is 
usually  admitted,  as  a  matter  of  course,  unless  some 
special  reason  intervene  to  vary  or  control  it ;  and  the 
new  administration  is  treated  as  merely  ancillary  or 
auxiliary  to  the  original  foreign  administration,  so  far 
as  regards  the  collection  of  the  effects  and  the  proper 
distribution  of  them.^  Still,  however,  the  new  adminis- 
tration is  made  subservient  to  the  rights  of  creditors, 
legatees,  and  distributees,  who  are  resident  within  the 
country  where  it  is  granted ;  and  the  residuum  is  trans- 
missible to  the  foreign  country  only,  when  a  final  ac- 
count has  been  settled  in  the  proper  tribunal  where  the 
new  administration  is  granted,  upon  the  equitable  prin- 


jurisdiction."  But  see  Anderson  v.  Gaunter,  2  Mylne  &  K.  763,  which 
seems  not  a  sound  authority.  Lord  Cottenham,  in  Tyler  v.  Bell,  2  IMylne 
&  Craig,  110,  manifestly  disapproved  of  it.  3  Burge,  Comm.  on  Col.  and 
For.  Law,  Pt.  2,  eh.  23,  ^  5,  p.  1010,  1011,  1012.  Mr.  Ch.  Walworth, 
in  McNamara  v.  Dwyer,  7  Paige,  236,  241,  held,  that  although  a  foreign 
administrator  could  not  sue,  he  might  be  sued  in  another  state,  for  an  ac- 
count of  the  assets  received  under  the  foreign  administration.  Can  such  a 
distinction  be  maintained?  — The  Supreme  Court  of  the  United  States,  in 
Vaughan  v.  Norlhup,  15  Peters,  decided  against  it.  —  S.  P.  Bond  v.  Gra- 
ham, 1  Hare,  R.  482  ;  Price  v.  Dewhurst,  4  Mylne  &  Craig,  76,  80.  See 
Preston  v.  Lord  Melville,  8  Clark  &  Finnell.  12,  14  ;  Vermilya  v.  Beatt.y, 
6  Barbour,  432. 

1  Harvey  v.  Richards,  1  Mason,  R.  381  ;  Stevens  v.  Gaylord,  11  Mass- 
R.  256  ;  Case  of  Miller's  Estate,  3  Rawle,  R.  312. 


CH.  XIII.]  FOREIGN   ADMINISTRATIONS.  863 

ciples  adopted  by  its  own  law,  in  the  application  and 
distribution  of  the  assets  found  there.^ 


1  Preston  v.  Lord  Melville,  8  Clark  &  Finnell.  12,  14.  —  See  Harvey 
V.  Richards,  1  Mason,  R.  381  ;  Dawes  v.  Boylston,  9  Mass.  R.  337  ;  Se- 
lectmen of  Boston  V.  Boylston,  2  Mass.  R.  318,  384  ;  Richards  v.  Dutch,  8 
Mass.  R.  506  ;  Dawes  v.  Head,  3  Pick.  R.  128  ;  Hooker  v.  Olmstead,  6 
Pick.  R.  481  ;  Davis  v.  Estey,  8  Pick.  R.  475 ;  Jennison  v.  Hapgood,  10 
Pick.  R.  77;  Stevens  v.  Gaylord,  11  Mass.  R.  256;  Case  of  Miller's  Es- 
tate, 3  Rawle,  312;  Gravillon  v.  Richards,  Ex'or,  13  Louis.  R.  293. 
Many  complicated  questions  may  grow  out  of  original  and  ancillary  ad- 
ministrations, some  of  which  have  been  stated  in  the  cases  of  Harvey  v. 
Richards,  1  Mason,  R.  381,  and  Dawes  v.  Head,  3  Pick.  R.  128.  The 
following  extract,  from  the  opinion  of  Mr.  Chief  Justice  Parker,  in  the 
latter  case,  deserves  an  attentive  perusal.  The  question  there  arose,  how 
assets  under  an  ancillary  administration  were  to  be  disposed  of  in  cases  of 
insolvency,  and  of  debts  due  to  creditors  belonging  to  the  same  country 
as  the  deceased  debtor.  The  Chief  Justice,  after  disposing  of  these  par- 
ticulars, said  ;  "  Thus  this  action  is  determined  without  touching  the 
questions  upon  which  it  was  supposed  it  would  turn,  which  are  of  a  novel 
and  delicate  nature,  and  though  often  glanced  at,  do  not  appear  to  have 
been  decided,  either  in  this  or  any  other  State  of  the  Union.  We  wish  to 
avoid  any  thing  which  may  be  construed  into  a  conclusive  adjudication, 
and  yet  are  of  opinion  that  it  will  be  useful  to  throw  out  for  consideration 
the  results  of  our  reasonings  upon  this  subject.  If  the  technical  difTiculties, 
upon  which  this  cause  has  been  decided,  had  not  occurred,  but  the  estate 
had  been  rendered  insolvent  here,  and  a  decree  of  distribution  for  a  pro- 
portion had  been  issued,  or  if  the  debt  of  Lenox  and  Sheafe  had  been  as- 
certained by  a  judgment,  and  the  pleadings  to  a  suit  on  the  bond  had  been 
the  same  in  that  case  as  now,  the  question  would  be,  whether  the  funds 
collected  here  by  an  ancillary  administration,  should  be  appropriated  to 
the  payment  of  such  debts,  as  might  be  regularly  proved  here,  notwith- 
standing it  was  made  to  appear,  that  the  whole  estate  was  insufficient  to 
pay  all  the  debts,  and  that  the  effects  here  were  wanted  by  the  executor 
abroad,  to  enable  him  duly  to  administer  the  estate.  It  has  been  contend- 
ed, that  this  should  be  done,  because  the  administrator  has  given  bond  here 
in  the  same  manner  as  if  this  were  the  original  administration,  and  because 
the  statute,  which  authorizes  this  administration,  requires,  that  the  Judge 
of  Probate  shall  settle  the  estate  in  the  same  way  and  manner  as  he 
would,  if  the  original  will  had  been  proved  here.  With  respect  to  the 
bond,  it  will  be  saved  by  a  faithful  administration  of  the  estate  according  to 
law ;  and  with  respect  to  the  settlement  by  the  Judge  of  Probate,  this 
must  be  understood  to  authorize  him  to  require  the  administrator  to  ac- 
count, and  that  the  due  course  of  proceedings  in  the  probate  office  shall  be 


864  CONFLICT    OF   LAWS.  [CH.    XIII. 

§  513  f^.  In  England  "it  is  well  established  that,  in 
the  case  of  a  British  subject  dying  intestate  in  the 
colonies  or  in  foreign  countries,  a  prerogative  adminis- 
tration extends  to  all  the  personal  property  of  the  in- 
testate, wherever  situate  at  the  time  of  his  death, 
whether  in  Great  Britain,  or  in  the  colonies,  or  in  any 
country  abroad  :  and,  indeed,  from  the  late  case  of 
Scarth  v.  Bishop  of  London,  it  appears  that,  where  the 
intestate  dies  abroad,  not  having  goods  in  divers  dio- 
ceses in  England,  but  only  in  the  diocese  of  London, 
administration  granted  to  such  intestate  by  the  Con- 
sistory Court  of  the  Bishop  of  London  will  be  equally 
effectual."^     How  far  this  doctrine  is  intended  to  be 


observed.  It  certainly  cannot  be  construed  to  mean,  that  in  all  cases  a 
final  settlement  of  the  estate  shall  take  place  here  ;  if  it  did,  then,  if  there 
were  no  debts  here,  and  none  to  claim  as  legatees  or  next  of  kin,  it  would 
be  necessary  for  all  such  to  prove  their  right  and  receive  their  distributive 
shares  here,  notwithstanding  the  settlennent  must  in  such  case  be  made 
according  to  the  laws  of  the  country  where  the  deceased  had  his  domicil. 
But  we  think  in  such  case  it  would  be  very  clear,  that  the  assets  collected 
here  should  be  remitted  to  the  foreign  executor  or  administrator ;  for  it 
seems  to  be  a  well-settled  principle,  that  the  distribution  is  to  be  made 
according  to  the  laws  of  the  country  where  the  deceased  was  domiciled  ; 
and  if  any  part  is  to  be  retained  for  distribution  here,  it  will  be  only  by 
virtue  of  some  exception  to  this  general  rule,  or  because  the  parties  inte- 
rested seek  their  remedy  here  ;  in  which  case  it  might  be  within  the  legal 
discretion  of  the  court  here  to  cause  distribution,  or  to  remit,  according  to 
the  circumstances  and  condition  of  the  estate.  An  exception  to  the  gene- 
ral rule  grows  out  of  the  duty  of  every  government  and  its  courts  to  pro- 
tect its  own  citizens  in  the  enjoyment  of  their  property ,and  the  recovery 
of  their  debts,  so  far  as  this  may  be  done  without  violating  the  equal 
rights  of  creditors  living  in  a  foreign  country.  In  relation  to  the  effects 
found  within  our  jurisdiction  and  collected  by  the  aid  of  our  laws,  a  regard 
to  the  rights  and  interests  of  our  citizens  requires,  that  those  effects  should 
be  made  answerable  for  debts  due  to  them,  in  a  just  proportion  to  the 

I  Whyte  V.  Rose,  3  Adolp.  &  Ell.   (New  Series)  498,  507  ;  Scarth  v. 
Bishop  of  London,  1  Hagg.  Eccles.  R.  625. 


CH.   XIII.]  FOREIGN    ADMINISTRATIONS.  865 

carried  is  not  perhaps  very  clearly  defined ;  and  cer- 
tainly, if  carried  fully  out,  it  may  materially  impair  the 


whole  estate  of  the  deceased,  and  all  the  claims  upon  it,  whatever  they 
may  be.  In  the  several  cases  which  have  come  before  this  Court,  where 
the  legal  character  and  effects  of  an  ancillary  administration  have  been 
considefed,  the  intimations  have  been  strong,  that  the  administrator  here 
shall  be  held  to  pay  the  debts  due  to  our  citizens.  The  cases,  Richards 
V.  Dutch  ;  Dawes,  Judge,  &c.  v.  Boylston  ;  Selectmen  of  Boston  v.  Boyl- 
ston  ;  and  Stevens  v.  Gaylord,  are  of  this  character.  In  all  these  cases, 
however,  we  must  suppose  the  Court  had  reference  to  a  solvent  estate, 
and  in  such  case  there  seems  to  be  no  question  of  the  correctness  of  the 
principle  ;  for  it  would  be  but  an  idle  show  of  courtesy  to  order  the  pro- 
ceeds of  an  estate  to  be  sent  to  a  foreign  country,  the  province  of  Bengal 
for  instance,  and  oblige  our  citizens  to  go  or  send  there  for  their  debts, 
when  no  possible  prejudice  could  arise  to  the  estate,  or  those  interested  in 
it,  by  causing  them  to  be  paid  here  ;  and  possibly  the  same  remark  may 
be  applicable  to  legacies  payable  to  legatees  living  here,  unless  the  cir- 
cumstances of  the  estate  should  require  the  funds  to  be  sent  abroad. 
Whether  citizens  of  other  States  claiming  payment  of  their  debts  of  the 
administrator  here,  are  to  be  put  upon  the  same  footing  with  citizens  of 
Massachusetts,  by  virtue  of  the  privileges  and  immunities  secured  to  them 
by  the  Constitution  of  the  United  States,  is  a  point  which  we  do  not  now 
decide.  But  without  doubt  the  courts  of  the  United  States,  having  full 
equity  powers,  would  enforce  payment  upon  the  principles  above  stated, 
where  there  is  no  suggestion  of  insolvency  of  the  estate.  There  would 
be  no  doubt,  we  think,  that  payment  of  debts  by  the  administrator  here, 
after  sufficient  proof,  that  they  were  due,  and  an  allowance  of  his  account 
therefor  by  the  Probate  Court  with  proper  notice,  would  be  faithful  admi- 
nistration according  to  the  condition  of  his  bond,  and  would  be  a  proper 
way  of  accounting  to  the  principal  administrator  abroad.  In  regard  to 
effects  thus  collected  within  our  jurisdiction,  belonging  to  an  insolvent 
estate  of  a  deceased  person  having  his  domicil  abroad,  the  question  may 
be  more  difficult.  We  cannot  think,  however,  that  in  any  civilized  coun- 
try, advantage  ought  to  betaken  of  the  accidental  circumstance  of  pro- 
perty being  found  within  its  territory,  which  may  be  reduced  to  possession 
by  the  aid  of  its  courts  and  laws,  to  sequester  the  whole  for  the  use  of  its 
own  subjects  or  citizens,  where  it  shall  be  known,  that  all  the  estate  and 
effects  of  the  deceased  are  insufficient  to  pay  his  just  debts.  Such  a  doc- 
trine would  be  derogatory  to  the  character  of  any  government.  Under 
the  English  bankrupt  system,  foreigners  as  well  as  subjects  may  prove 
their  debts  and  share  in  the  distribution.  Without  doubt,  in  other  foreign 
countries,  where  there  is  a  cessio  bonorum,  or  other  process  relating  to 

CONFL.  73 


S66  CONFLICT    OF   LAWS.  [CH.  XIIL 

general  doctrine  as  to  the  necessity  of  local  administra- 
tions, as  well  as  trench  upon  the  rights  of  foreign  credit- 


bankrupts'  estates,  the  same  just  principle  is  adopted.  It  was  so  under 
our  bankrupt  law,  while  that  was  in  force,  and  no  reason  can  be  sug- 
gested why  so  honest  and  just  a  principle  should  not  be  applied  in  the 
case  of  insolvent  estates  of  deceased  persons.  It  is  always  practised  upon 
in  regard  to  persons  dying  within  our  jurisdiction,  having  had  their  domi- 
cil  here ;  that  is,  creditors  of  all  countries  have  the  same  rights  as  our 
own  citizens,  to  file  their  claims  and  share  in  the  distribution.  There 
cannot  be,  then,  a  right  in  ahy  one  or  more  of  our  citizens,  who  may  hap- 
pen to  be  creditors,  to  seize  the  whole  of  the  effects  which  may  be  found 
here,  or  claim  an  appropriation  of  them  to  the  payment  of  their  debts,  in 
exclusion  of  foreign  creditors.  It  is  said  this  is  no  more  than  what  may 
be  done  by  virtue  of  our  attachment  law,  in  regard  to  the  property  of  a  living 
debtor  who  is  insolvent.  But  the  justness  of  that  law  is  very  question- 
able, and  its  application  ought  not  to  be  extended  to  cases,  by  analogy, 
which  do  not  come  within  its  express  provisions.  What  then  is  to  be 
done  with  the  effects  collected  here  belonging  to  an  insolvent  estate  in  a 
foreign  country  1  Shall  they  be  sent  home  in  order  to  be  appropriated  ac- 
cording to  the  laws  of  that  country  1  This  would  often  work  great  injustice 
and  always  great  inconvenience  to  our  own  citizens,  whose  debts  might  not 
be  large  enough  to  bear  the  expense  of  proving  and  collecting  them  abroad  ; 
and  in  countries  where  there  is  no  provision  for  an  equal  distribution,  the 
pursuit  of  them  might  be  wholly  fruitless.  As  in  Great  Britain,  our  citi- 
zens, whose  debts  would  generally  be  upon  simple  contract,  such  as  bills  of 
exchange,  promissory  notes,  accounts,  &c.,  would  be  postponed  to  credit- 
ors by  judgment,  bond,  &c.,  and  even  to  other  debts  upon  simple  contract 
which  might  be  preferred  by  the  executor  or  administrator.  It  would  seem 
too  great  a  stretch  of  courtesy  to  require  the  effects  to  be  sent  home  and 
our  citizens  to  pursue  them  under  such  disadvantages.  What  then  shall  be 
done  to  avoid,  on  the  one  hand,  the  injustice  of  taking  the  whole  funds  for 
the  use  of  our  citizens  to  the  prejudice  of  foreigners,  when  the  estate  is 
insolvent,  and  on  the  other,  the  equal  injustice  and  greater  inconvenience 
of  compelling  our  own  citizens  to  seek  satisfaction  of  their  debts  in  distant 
countries'?  The  proper  course  would  undoubtedly  be,  to  retain  the  funds 
here  for  a  pro  rata  distribution  according  to  the  laws  of  our  State  among 
the  citizens  thereof,  having  regard  to  all  the  assets,  either  in  the  hands  of 
the  principal  administrator,  or  of  the  administrator  here,  and  having  regard 
also  to  .^the  whole  of  the  debts,  which  by  the  laws  of  either  country  are 
payable  out  of  those  assets,  disregarding  any  fanciful  preference  which 
may  be  given  to  one  species  of  debt  over  another,  considering  the  funds 
here  as  applicable  to  the  payment  of  the  just  proportion  due  to  our  own 


CH.  xiil]  foreign  administrations.  867 

ors  and  foreign  governments.     Is  it  meant  to   be  said, 
that  if  personal  property  is  in  a  foreign  country  at  the 


citizens  ;  and,  if  there  be  any  residue,  it  should  be  remitted  to  the  prin- 
cipnl  administrator,  to  be  dealt  with  according  to  the  laws  of  his  own 
country,  the  subjects  of  that  country,  if  there  be  any  injustice  or  inequality 
in  the  payment  or  distribution,  being  bound  to  submit  to  its  laws.  The 
only  objection  which  can  be  made  to  this  mode  of  adjusting  an  ancillary 
administration  upon  an  insolvent  estate,  is  the  difficulty  and  delay  of  exe- 
cuting it.  The  difficulty  would  not  be  greater  than  in  settling  many  other 
complicated  affairs,  where  many  persons  have  interests  of  different  kinds 
in  the  same  funds.  The  powers  of  a  court  of  Chancery  are  competent  to 
embrace  and  settle  all  cases  of  that  nature,  even  if  the  powers  of  the 
Court  of  Probate  are  not  sufficiently  extensive  ;  which  however  is  not 
certain.  The  administrator  here  should  be  held  to  show  the  condition  of 
the  estate  abroad,  the  amount  of  property  subject  to  debts,  and  the  amount 
of  debts,  and  a  distribution  could  be  made  upon  perfectly  fair  and  equitable 
principles.  The  delay  would  undoubtedly  be  considerable,  but  this  would 
not  be  so  great  an  evil  as  either  sending  our  citizens  abroad  upon  a  forlorn 
hope  to  see  the  fragments  of  an  insolvent  estate,  or  paying  the  whole  of 
their  debts  out  of  the  property  without  regard  to  the  claims  of  foreign 
creditors.  And  if  the  Probate  Court  has  not  sufficient  power  to  make 
such  an  equitable  adjustment,  a  bill  in  equity,  in  which  the  administrator 
here  should  be  the  principal  respondent,  would  probably  produce  the 
desired  result,  and  then  time  and  opportunity  could  be  given  to  make 
known  the  whole  condition  of  the  estate,  and  all  persons  interested  might 
be  heard  before  any  final  decree  ;  in  the  mean  time  the  administrator 
could  be  restrained  from  remitting  the  funds  until  such  decree  should  be 
passed."     Dawes  v.  Head,  3  Pick.  R.  143  to  148. 

The  following  extracts  are  made  from  the  opinion  of  the  Court  in  Har- 
vey V.  Richards.  "  One  objection  urged  against  the  exercise  of  the  author- 
ity of  the  Court  is,  that,  as  national  comity  requires  the  distribution  of 
the  property  according  to  the  law  of  the  domicil,  the  same  comity  requires 
that  the  distribution  should  be  made  in  the  same  place.  This  consequence, 
however,  is  not  admitted  ;  and  it  has  no  necessary  connection  with  the 
preceding  proposition.  The  rule,  that  distribution  shall  be  according  to 
the  law  of  the  domicil  of  the  deceased,  is  not  founded  merely  upon  the 
notion,  that  movables  have  no  situs,  and  therefore  follow  the  person  of  the 
proprietor,  even  interpreting  that  maxim  in  its  true  sense,  that  personal 
property  is  subject  to  that  law  which  governs  the  person  of  the  owner. 
Nor  is  it,  perhaps,  founded  upon  the  presumed  intention  of  the  deceased, 
that  all  his  property  should  be  distributed  according  to  the  law  of  the 
place  of  his  domicil,  with  which  he  is  supposed  to  be  best  acquainted  and 


868  CONFLICT    OF   LAWS.  [CH.  XIIL 

death  of  the  intestate,  it  may  be  removed  from  thence, 
and  administered  under  a  prerogative  administration  in 


satisfied  ;  for  the  rule  will  prevail  even  against  the  express  intention  of  the 
deceased,  unless  the  mode  in  which  that  intention  is  expressed  would  give 
it  legal  validity  as  a  will.  It  seems,  indeed,  to  have  had  its  origin  in  a 
more  enlarged  policy,  founded  upon  the  general  convenience  and  necessi- 
ties of  mankind  ;  and  in  this  view  the  maxim  above  stated  flows  from, 
rather  than  guides  the  application  of  that  policy.  The  only  reason,  why 
any  nation  gives  effect  to  foreign  laws  within  its  own  territory,  is  the  end- 
less embarrassment  which  would  otherwise  be  introduced  in  its  own  inter- 
course with  foreign  nations.  The  rights  of  its  own  citizens  would  be 
materially  impaired,  and,  in  many  instances,  totally  extinguished,  by  a 
refusal  to  recognize  and  sustain  the  doctrines  of  foreign  law.  The  case 
now  under  consideration  is  an  illustration  of  the  perfect  justice  and  wis- 
dom of  this  general  practice  of  nations.  A  person  may  have  movable 
property  and  debts  in  various  countries,  each  of  which  may  have  a  different 
system  of  succession.  If  the  law  rei  sita;  were  generally  to  prevail,  it 
would  be  utterly  impossible  for  any  such  person  to  know  in  what  manner 
his  property  would  be  distributed  at  his  death,  not  only  from  the  uncer- 
tainty of  its  situation  from  its  own  transitory  nature,  but  from  the  imprac- 
ticability of  knowing  with  minute  accuracy,  the  law  of  succession  of  every 
country,  in  which  it  might  then  happen  to  be.  He  would  be  under  the 
same  embarrassment,  if  he  attempted  to  dispose  of  his  property  by  a  testa- 
ment; for  he  could  never  foresee,  where  it  would  be  at  his  death.  Nay 
more,  it  would  be  in  the  power  of  his  debtor,  by  a  mere  change  of  his 
own  domicil,  to  destroy  the  best  digested  will;  and  the  accident  of  a 
moment  might  destroy  all  the  anxious  provisions  of  an  excellent  parent  for 
his  whole  family.  Nor  is  this  all.  The  nation  itself,  to  which  the 
deceased  belonged,  might  be  seriously  affected  by  the  loss  of  his  wealth, 
from  a  momentary  absence,  although  his  true  home  was  in  the  centre  of 
its  own  territory.  These  are  great  and  serious  evils,  pervading  every 
class  of  the  community,  and  equally  affecting  every  civilized  nation.  But 
in  a  maritime  nation,  depending  upon  its  commerce  for  its  glory  and  its 
revenue,  the  mischief  would  be  incalculable.  The  common  and  spontane- 
ous consent  of  nations,  therefore,  established  this  rule  from  the  noblest 
policy,  the  promotion  of  general  convenience  and  happiness,  and  the 
avoiding  of  distressing  difRculties,  equally  subversive  of  the  public  safety 
and  private  enterprise  of  all.  It  flowed  from  the  same  spirit,  that  dictated 
judicial  obedience  to  the  foreign  commissions  of  the  admiralty.  Sub 
mutuae  vicissitudinis  obtentu,  damus  petimusque  vicissim,  is  the  language 
of  the  civilized  world  on  this  subject.  There  can  be  no  pretence,  that  the 
same  general  inconvenience  or  embarrassment  attends  the  distribution  of 


CH.  XIII.]  FOREIGN   ADMINISTRATIONS.  869 

England,  or  administered  in  England  Avithout  such  a 
removal,  and   in  either  case  be  obligatory  upon   the 


foreign  effects  according  to  the  foreign  law  by  the  tribunals  of  the  country, 
where  they  are  situate.     Cases  have  been  already  stated,  in  which  great 
inconvenience  would  attend  the  establishment  of  any  rule,  excluding  such 
distribution.     It  may  be  admitted  also,  that  there  are  cases,  in  which  it 
would  be  highly  convenient  to  decline  the  jurisdiction  and  remit  the  parties 
to  the  forum  domicilii.     Where  there  are  no  creditors  here,  and  no  heirs 
or  legatees  here,  but  all  are  resident  abroad,  there  can  be  no  doubt,  that  a 
court  of  equity  would  direct  the  remittance  of  the  property  upon  the  ap- 
plication of  any  competent  party.    -The  correct  result  of  these  consider- 
ations upon  principle  would  seem  to  be,  that  whether  the  Court  here  ought 
to  decree  distribution   or  remit  the  property  abroad,  is  a  matter,  not  of 
jurisdiction,  but  of  judicial  discretion,  depending  upon  the  particular  cir- 
cumstances of  each  case  ;  that  there  ought  to  be  no  universal  rule  upon 
this  subject ;  but  that  every  nation  is  bound  to  lend  the  aid  of  its  own  tri- 
bunals for  the  purpose  of  enforcing  the  rights  of  all  persons,  having  a  title 
to  the  fund,  when  such  interference  will  not  be  productive  of  injustice  or 
inconvenience,  or  conflicling  equities.     It  is  farther  objected,  that  a  rule, 
which  is  to  depend  for  its  application  upon  the  particular  circumstances  of 
each  case,  is  too  uncertain  to  be  considered  a  safe  guide  for  general  prac- 
tice.    But  this  objection  affords  no  solid  ground  for  declining  the  jurisdic- 
tion, since  there  are  an  infinite  variety  of  cases,  in  which  no  general  rule 
has  been  or  can  be  laid  down,  as  to  legal  or  equitable  relief,  in  the  ordinary 
controversies  before  judicial  tribunals.     In  many  of  these,  the  difficulty  is 
intrinsic  in  the  subject-matter  ;  and  where  a  general  rule  cannot  easily  be 
extracted,  each  case  must,  and  indeed  ought  to,  rest  on  its  own  particular  cir- 
cumstances.    The  uncertainly,  therefore,  is  neither  more  nor  less  than  be- 
longs to  many  other  complicated  transactions  of  human  life,  where  the  law 
administers  relief  ex  eeque  et  bono.     Another  objection,  addressed  more 
pointedly  to  a  class  of  cases  like  the  present,  is  the  difficulty  of  settling 
the  accounts  of  the  estate,  ascertaining  the  assets,  what  debts  are  sperate, 
what  desperate,  and,  finally  ascertaining  what  is  the  residue  to  be  distri- 
buted, and  who  are  the  next  of  kin  entitled  to  share.     And  to  add  to  our 
embarrassment,  we  are  told,  that  we  cannot  compel  the  foreign  executor 
to  render  any  accounts  in  our  courts.     I  agree  at  once,  that  this  cannot  be 
done,  if  he  is  not  here;  but  I  utterly  deny,  that  the  administrator  here 
cannot  be  compelled  to  account  to  any  competent  Court  for  all  the  assets, 
which  he  has  received  under  the  authority  of  our  laws.     And  if  the  foreign 
executor  chooses  to  lie  by,  and  refuses  to  render   any  account  of  the  fo- 
reign funds  in  his  hands,  so  far  as  to  enable  the  Court  here  to  ascertain 
whether  the  funds  are  wanted  abroad  for  the  payment  of  debts  or  legacies, 
73* 


870  CONFLICT    OF   LAWS.  [CH.  XIII. 

foreign  government,  and  pass  a  perfect  title  to  the  pro- 
perty ? 

§  514.  But  although  an  executor  or  administrator, 
appointed  in  one  State,  is  not  in  virtue  of  such  appoint- 
ment entitled  to  sue,  nor  is  he  liable  to  be  sued,  in  his 


or  not,  he  has  no  right  to  complain,  if  the  Court  refuses  to  remit  the 
assets,  and  distributes  them  among  those  who  may  legally  claim  them. 
And  as  to  settling  the  estate,  or  ascertaining  who  are  the  distributees, 
there  is  no  more  difficulty  than  often  falls  to  our  lot  in  many  cases,  arising 
under  the  ordinary  probate  proceedings.  All  these  objections  are,  in  fact, 
reasons  for  declining  to  exercise  the  jurisdiction  in  particular  cases,  rather 
than  reasons  against  the  existence  of  the  jurisdiction  itself.  It  seems, 
indeed,  admitted  by  the  learned  counsel  for  the  defendant,  that,  if  there  be 
no  foreign  administration,  it  would  be  the  duty  of  the  Court  to  grant  relief 
upon  an  administration  taken  here.  Yet  every  objection,  already  urged, 
would  apply  with  as  much  force  in  that,  as  in  the  present  case.  The 
property  would  be  to  be  distributed  according  to  the  foreign  law  of  the 
deceased's  domicil.  The  same  difficulty  would  exist,  as  to  ascertaining 
the  debts  and  legacies,  and  the  assets  and  distributees  entitled  to  share. 
But  it  is  said  in  the  case  now  put,  the  administration  here  would  be  the 
principal  administration,  whereas  in  the  case  at  bar,  it  is  only  an  auxiliary 
or  ancillary  administration.  I  have  no  objection  to  the  use  of  the  terms 
principal  and  auxiliary,  as  indicating  a  distinction  in  fact  as  to  the  objects 
of  the  different  administrations  ;  but  we  should  guard  ourselves  against 
the  conclusion,  that  therefore  there  is  a  distinction  in  law  as  to  the  rights 
of  parties.  There  is  no  magic  in  words.  Each  of  these  administrations 
may  be  properly  considered  as  a  principal  one,  with  reference  to  the  limits 
of  its  exclusive  authority  ;  and  each  might,  under  circumstances,  justly  be 
deemed  an  auxiliary  administration.  If  the  bulk  of  the  property,  and  all 
the  heirs  and  legatees  and  creditors  were  here,  and  the  foreign  adminis- 
tration were  only  to  recover  a  few  inconsiderable  claims,  that  would 
most  correctly  be  denominated  a  mere  auxiliary  administration  for  the 
beneficial  use  of  the  parties  here,  although  the  domicil  of  the  testator 
were  abroad.  The  converse  case  would  of  course  produce  an  opposite 
result.  But  I  am  yet  to  learn,  what  possible  difference  it  can  make  in 
the  rights  of  parties  before  the  Court,  whether  the  administration  be  a 
principal  or  an  auxiliary  administration.  They  must  stand  upon  the 
authority  of  the  law  to  administer  or  deny  relief,  under  all  the  circum- 
stances of  their  case,  and  not  upon  a  mere  technical  distinction  of  very 
recent  origin."  Harvey  v.  Richards,  1  Mason,  R.  381.  See  also  Gravil- 
lon  V.  Richard's  Ex'or,  13  Louis,  R.  293. 


CH.  XIII.]  FOREIGN   ADMINISTRATIONS.  871 

official  capacity  in  any  other  state  or  country ;  yet 
there  are  many  other  questions,  which  may  require  con- 
sideration, and  in  which  a  conflict  of  laws  may  arise  in 
different  countries.  In  the  first  place,  let  us  suppose, 
that  an  executor  or  administrator  should  go  into  a  fo- 
reign country,  and,  without  there  taking  out  new  let- 
ters of  administration,  should  there  collect  property, 
effects,  and  debts  of  his  testator  or  intestate,  found  or 
due  there ;  the  question  might  arise,  whether  he  would 
not  thereby,  to  the  extent  of  his  receipt  and  collection 
of  such  assets,  be  liable  to  be  sued  in  the  courts  of  that 
country  by  any  creditor  there.  Upon  general  prin- 
ciples it  would  seem,  that  he  would  so  be  liable ;  and, 
upon  the  principles  of  the  common  law,  he  would  be 
liable  as  an  executor  de  son  tort,  or  person  intermeddling 
with  such  assets  without  any  rightful  authority,  derived 
from  the  local  authorities  under  a  new  grant  of  admi- 
nistration there.  For  it  would  not  lie  in  his  mouth  to 
deny,  that  he  had  rightfully  received  such  assets ;  and 
he  could  not  rightfully  receive  them  except  as  execu- 
tor.^ It  would  be  quite  a  different  question,  whether 
the  payment  of  any  such  debts,  or  the  delivery  of  any 
such  property  or  effects  to  him  by  the  debtors,  or  by 
other  persons,  owing  or  possessing  the  same,  would  be 
a  valid  payment  or  discharge  of  such  persons  therefrom, 
or  would  confer  any  title  to  the  same  upon  such  execu- 
tor or  administrator,  at  least  against  any  executor  or 
administrator,  subsequently  appointed  in  such  foreign 
state  or  country,  and  contesting  the  right  or  title." 
Upon  that  question,  there  is  much  room  for  discussion 


^  Campbell  v.  Tousey,  7  Cowen,  R.  64. 

-  Preston  v.  Lord  Melville,  8  Clark  &  Fin.  1,  12,  14. 


872  CONFLICT    OF   LAWS.  [CH.   XIIL 

and  doubt,  notwithstanding  what  has  been  asserted  in 
some  of  the  tribunals  acting  under  the  common  law.^ 
For  it  is  exceedingly  clear,  that  the  probate  grant  of 
letters  testamentary,  or  of  letters  of  administration,  in 
one  country,  give  authority  to  collect  the  assets  of  the 
testator  or  intestate  only  in  that  country,  and  do  not 
extend  to  the  collection  of  assets  in  foreign  countries  ; 
for  that  would  be  to  assume  an  extra-territorial  jurisdic- 
tion or  authority,  and  to  usurp  the  functions  of  the 
foreign  local  tribunals  in  those  matters.^  It  is  no 
answer  to  the  objection  to  say,  that  the  effects  of  the 
testator  or  intestate  are  assets,  wherever  they  are  situ- 
ated, whether  at  home  or  abroad  ;  and  that  such  effects 
as  are  in  a  foreign  country  at  the  time  of  the  death  of 
the  testator  or  intestate,  although  they  remain  and  are 
wholly  administered  there  by  the  executor,  are  equally 


1  Doolittle  V.  Lewis,  7  Johns.  Ch.  R.  45,  49  ;  post,  ^  515. 

2  See  Pond,  Administrator  v.  Makepeace,  2  Mete.  R.  114;  Preston  v- 
Lord  Melville,  8  Clark  &  Finnell.  1,  12,  14.  See  Attorney-General  v. 
Bouwens,  4  Mees.  &  Welsh.  171,  190,  191,  192.  On  this  occasion  Lord 
Abinger  said  :  "  Whatever  may  have  been  the  origin  of.  the  jurisdiction 
of  the  ordinary  to  grant  probate,  it  is  clear,  that  it  is  a  limited  jurisdiction, 
and  can  be  exercised  in  respect  of  those  effects  only  which  he  would 
have  had  himself  to  administer  in  case  of  intestacy,  and  which  must 
therefore  have  been  so  situated  as  that  he  could  have  disposed  of  them 
in  pios  usus.  As  to  the  locality  of  many  descriptions  of  effects,  house- 
hold and  movable  goods,  for  instance,  there  never  could  be  any  dispute. 
But  to  prevent  conflicting  jurisdictions  between  different  ordinaries,  with 
respect  to  choses  in  action  and  titles  to  property,  it  was  established  as 
law,  that  judgment  debts  w-ere  assets,  for  the  purposes  of  jurisdiction, 
where  the  judgment  is  recorded  ;  leases,  where  the  land  lies  ;  specialty 
debts,  where  the  instrument  happens  to  be ;  and  simple  contract  debts, 
where  the  debtor  resides  at  the  time  of  the  testator's  death  :  and  it  was 
also  decided,  that  as  bills  of  exchange  and  promissory  notes  do  not  alter 
the  nature  of  the  simple  contract  debts,  but  are  merely  evidences  of  title, 
the  debts  due  on  these  instruments  were  assets,  where  the  debtor  lived, 
and  not  where  the  instrunaent  was  found.  In  truth,  with  respect  to  simple 
contract  debts,  the  only  act  of  administration,  that  could  be  performed  by 


CH.  XIII.]  FOREIGN   ADMINISTRATIONS.  873 

assets.  Doubtless  this  is  true ;  but  the  question  is 
not,  whether  they  are  assets  or  not ;  but  who  is  clothed 
with  authority  to  administer  them ;  and  this  must  be 
decided  by  the  local  jurisdiction  where  they  are  situat- 
ed ;  for  the  original  administration  has  no  extra-terri- 
torial operation.^ 


the  ordinary,  would  be  to  recover  or  to  receive  payment  of  the  debt,  and 
thai  would  be  done  by  him,  within  whose  jurisdiction  the  debtor  happened 
to  be.  These  distinctions  being  well  established,  it  seems  to  follow,  that 
no  ordinary  in  England  could  perform  any  act  of  administration  within 
his  diocese,  with  respect  to  debts  due  from  persons  resident  abroad,  or 
with  respect  to  shares  or  interest  in  foreign  funds  payable  abroad,  and  in- 
capable of  being  transferred  here ;  and  therefore  no  duty  would  be  paya- 
ble on  the  probate  or  letters  of  administration  in  respect  of  such  eifects. 
But,  on  the  other  hand,  it  is  clear,  that  the  ordinary  could  administer 
all  chattels  within  his  jurisdiction  ;  and  if  an  instrument  is  created  of  a 
chattel  nature,  capable  of  being  transferred  by  acts  done  here,  and  sold 
for  money  here,  there  is  no  reason  why  the  ordinary  or  his  appointee 
should  not  administer  that  species  of  property.  Such  an  instrument  is 
in  effect  a  salable  chattel,  and  follows  the  nature  of  other  chattels  as  to 
the  jurisdiction  to  grant  probate.  In  this  case,  assuming  that  the  foreign 
governments  are  liable  to  be  sued  by  the  legal  holder,  there  is  no  conflict 
of  authorities ;  for  there  governments  are  not  locally  within  the  jurisdic- 
tion, nor  can  be  sued  here  ;  and  no  act  of  administration  can  be  performed 
in  this  country,  except  in  the  diocese  where  the  instruments  are,  which 
may  be  dealt  with,  and  the  money  received  by  their  sale  in  this  country. 
Let  us  suppose  the  case  of  a  person  dying  abroad,  all  whose  property  in 
England  consists  of  foreign  bills  of  exchange,  payable  to  order,  which  bills 
of  exchange  are  well  known  to  be  the  subject  of  commerce,  and  to  be 
usually  sold  on  the  Royal  Exchange.  The  only  act  of  administration, 
which  his  administrator  could  perform  here,  would  be  to  sell  the  bills  and 
apply  the  money  to  the  payment  of  his  debts.  In  order  to  make  titles  to 
the  bills  to  the  vendee,  he  must  have  letters  of  administration  ;  in  order  to 
sue  in  trover  for  them,  if  they  are  improperly  withheld  from  him,  he  must 
have  letters  of  administration,  (for  even  if  there  were  a  foreign  administra- 
tion, it  is  an  established  rule,  that  an  administration  is  necessary  in  the 
country  where  the  suit  is  instituted)  ;  and  that  these  letters  of  adminis- 
tration must  be  stamped  with  a  duty  according  to  the  salable  value  of 
the  bills ;  the  case  of  Hunt  v.  Stevens,  is  an  express  authority."  See 
also  Doolittle  v.  Lewis,  7  Johns.  Ch.  R.  45,  46,  47;  Morrell  v.  Dickey, 
1  Johns.  Ch.  R.  153. 
1  Altor.-Gen.  v.  Dimond,  I  Cromp.  &  Jerv.  356,  370  ;  ante,  §  513. 


874  CONFLICT    OF   LAWS.  [CH.  XIII. 

§  514  a.  Ill  the  next  place,  let  us  suppose,  that  an 
executor  or  administrator  appointed  in  the  State  where 
his  testator  or  intestate  died,  should  go  into  a  foreign 
country,  and  should,  without  taking  out  new  letters  of 
administration,  collect  assets  in  such  foreign  country, 
and  bring  them  home  to  the  State,  from  which  he  had 
received  his  original  letters  testamentary,  or  letters  of 
administration  ;  the  question  might  arise,  whether,  in 
such  a  case,  he  would  be  liable  to  account  in  the  courts 
of  the  latter  State  for  all  the  assets  which  he  had  so 
received  in  the  foreign  country,  in  the  same  way  and 
under  the  like  circumstances,  as  he  would  be  liable  to 
account  for  them  if  he  had  received  them  in  the  home 
State.  In  other  words,  whether  they  would  constitute 
a  part  of  the  home  assets  which  he  is  bound  to  admi- 
nister, and  for  which  he  is  liable  to  account  under  the 
domestic  administration  according  to  the  domestic  laws. 
It  has  been  said,  that  the  assets,  so  received  and  col- 
lected, are  to  be  so  administered  and  accounted  for,  as 
home  assets,  by  such  executor  or  administrator.  And 
the  doctrine  laid  down  in  an  ancient  case  is  relied  on 
for  this  purpose  ;  where  it  is  asserted  to  have  been 
held  by  the  Court,  that  "  if  the  executor  have  goods  of 
the  testator  in  any  part  of  the  world,  they  shall  be 
charged  in  respect  of  them ;  for  many  merchants  and 
other  men,  who  have  stocks  and  goods  to  a  great  value 
beyond  sea,  are  indebted  here  in  England ;  and  God 
forbid,  that  those  goods  should  not  be  liable  to  their 
debts ;  for  otherwise,  there  would  be  a  great  defect  in 
our  law."  ^     Now  this  language  in  its  broad  import  is 


1  Dovvdale's  Case,  6  Co.  R.  47,  48  ;  S.  C.  Cro.  Jac.  55  ;  cited  and  ap- 
proved also  in  Evans  v.  Tatem,  9  Serg.  &  R.  252,  259. 


CH.  XIII.]  FOREIGN   ADMINISTRATIONS.  875 

certainly  unmaintainable  in  our  day ;  for  it  goes  to  the 
extent  of  making  a  domestic  executor  or  administrator 
liable  for  all  assets  of  the  testator  or  intestate,  which 
are  locally  situate  abroad  ;  although,  as  we  have  seen, 
he  has  not  in  virtue  of  the  domestic  letters  of  adminis- 
tration any  authority  to  collect  them,  or  to  compel  pay- 
ment or  delivery  thereof  to  himself^  But  the  circum- 
stances of  the  case  called  for  no  such  doctrine.  The 
case  was  of  a  testator  who  died  in  Ireland,  and  the  • 
defendant,  who  was  his  executor,  collected  and  admi- 
nistered in  Ireland  certain  property  of  the  deceased. 
Afterwards  he  came  to  England,  and  was  sued  there 
by  a  creditor  as  executor;  and  the  question  arose, 
whether  he  was  liable  to  the  creditor  in  such  suit  for 
the  assets  collected  and  received  by  him  in  Ireland 
under  the  administration  there.  With  reference,  there- 
fore, to  the  actual  facts  of  the  case,  the  more  general 
question  did  arise.  But  according  to  the  doctrine 
maintained  in  England  in  modern  times,  he  was  not  at 
all  liable  to  be  sued  in  England,  as  executor,  under  let- 
ters testamentary  taken  out  in  Ireland  ;  and  a  fortiori 
not  for  the  assets  received  and  administered  in  Ireland 
under  that  appointment.^  The  authority  of  the  case 
may  therefore  well  be  doubted  in  both  of  its  aspects.^ 


1  Ante,  ^  314. 

~  Ante,  ^  314  ;  post,  ^  515. 

3  "  If,  after  such  administration  shall  have  been  completed,  any  surplus 
should  remain,  and  it  shall  appear  that  there  are  trusts  to  be  performed  in 
Scotland,  to  which  it  was  devoted  by  Sir  Robert  Preston,  it  will  be  for 
the  Court  of  Chancery  to  consider  whether  such  surplus  ought  or  ought 
not  to  be  paid  to  the  pursuers,  for  the  purpose  of  being  applied  in  the  per- 
formance of  such  trusts  ;  and  in  considering  that  question  every  attention 
ought  to  be  paid  to  the  authority  under  which  the  pursuers  have  been 
appointed  trustees,  and  the  consent  which  led  to  such  appointment.  It  is 
premature  to  decide  that  point,  it  being  at  present  unascertained  whether 


876  CONFLICT    OF   LAWS.  [CH.  XIIL 

§  514  1).  Some  of  the  American  Courts  have  gone 
the  length  of  recognizing,  to  its  full  extent,  the  doctrine 
asserted  in  this  case ;  and  have  held,  that  a  foreign 
executor  or  administrator,  coming  here,  having  received 
assets  in  the  foreign  country,  is  liable  to  be  sued  here, 
and  to  account  for  such  assets,  notwithstanding  he  has 
taken  out  no  new  letters  of  administration  here,  nor  has 
the  estate  been  positively  settled  in  the  foreign  state.' 
The  doctrine  asserted  in  these  courts  is,  that  such  a  fo- 
reign executor  or  administrator  is  chargeable  here,  as 
executor,  for  all  the  assets  which  he  still  retains  in  his 
hands,  or  which  he  has  expended,  or  disposed  of  here, 
unless  expended  or  disposed  of  here  in  the  due  course 
of  administration,  whether  they  were  received  here 
or  in  the  foreign  country,  although  he  has  not  taken 
out  any  new  letters  of  administration  here.^  There 
is  very  great  difficulty  in  supporting  these  decisions 
to  the  extent  of  making  the  foreign  executor  or  ad- 
ministrator liable  here  for  assets  received  by  him 
abroad  in  his  representative  character,  and  brought 
here  by  him.  If  a  foreign  executor  or  administrator 
cannot  sue  in  his  representative  character  in  another 
state  for  the  assets  of  the  deceased  situate  there,  with- 
out new  letters  of  administration ;  because  he  derives 
his  authority  solely  from  a  foreign  government,  which 


there  will  be  any  surplus  of  the  personal  estate  in  this  country,  or  what 
will  be  the  amount  of  it,  and  no  declaration  of  right  by  the  Court  of  Ses- 
sion would  be  binding  upon  the  Court  of  Cliancery,  under  whose  jurisdic- 
tion the  property  in  England  is  placed  by  the  suits  which  have  been  insti- 
tuted."    Preston  v.  Lord  Melville,  8  Clark  &  Fin.  14. 

1  Swearingen's  Ex'ors  v.  Pendleton's  Ex'ors,  4  Serg,  &  R.  389,  392  ; 
Evans  v.  Tatem,  9  Serg.  &  Rawle,  252,  259;  Bryan  v.  McGee,  2  Wash. 
Cir.  R.  337  ;  Campbell  v.  Tousey,  7  Co  wen,  R.  64. 

2  Ibid. 


CH.    XIII.]  FOREIGN   ADMINISTRATIONS.  877 

has  no  authority  to  confer  any  right  upon  him,  except 
to  collect  and  receive  the  assets,  found  within  its  own 
territorial  jurisdiction,  and  to  which,  therefore,  he  is 
properly  and  directly  responsible  for  the  due  adminis- 
tration of  the  assets,  actually  collected  and  received  in 
such  foreign  country  under  its  exclusive  appointment, 
it  is  not  easy  to  perceive  how  he  can  be  suabld  in  such 
State  for  such  assets  in  his  hands,  received  abroad  by 
him  under  the  sanction  of  the  foreign  administration, 
and  by  the  authority  of  the  foreign  government,  to 
which  he  is  thus  accountable  for  all  such  assets.  One 
of  the  learned  Courts,  however,  which  decided  the 
point,  seems  to  have  taken  it  for  granted,  that  a  foreign 
executor  or  administrator  was  of  course  suable  here  for 
all  assets  found  in  his  hands.  "  If  a  foreign  executor," 
said  the  Court,  "  is  liable  to  be  sued  here,  of  which  we 
apprehend  there  can  be  no  question,  he  must,  from  the 
very  nature  of  the  case,  prmd  facie,  be  responsible  for 
the  assets  which  are  shown  to  have  been  in  his  posses- 
sion within  this  State."  With  great  deference,  that 
was  the  very  point  to  be  established  by  some  just 
reasoning,  founded  upon  the  principles  of  international 
jurisprudence  generally  recognized  by  foreign  jurists, 
or  by  the  uniform  established  doctrine  of  the  common 
law  on  this  subject  in  modern  times.  It  will  be  found 
exceedingly  difficult  to  cite  any  modern  authorities  at 
the  common  law  in  support  of  such  a  doctrine,^  since 
no  authority  could  be  shown  which  supported  it.     On 


•  In  the  cases  of  Swearingen's  Ex'ors  v.  Pendleton's  Ex'ors,  4  Serg.  & 
Rawle,  389,  392,  and  Evans  v.  Tatem,  9  Serg.  &  Rawle,  252,  259,  the 
Supreme  Court  of  Pennsylvania  contented  itself  with  merely  affirming  the 
doctrine  in  Dowdaie's  Case,  (G  Co.  R.  47.)  without  any  general  reasoning 
on  the  subject. 

CONFL.  74 


878  CONFLICT    OF    LAWS.  [CH.  XIII. 

the   other  hand,  there  are  other  American  authorities 
■which  indicate  a  very  different  doctrine.^     The  modern 


1  The  very  recent  case  of  Fay  v.  Haven,  3  Metcalf,  109,  is  directly  in 
point.     See  Selectmen  of  Boston  v.  Boylston,  2  Mass.  R.  384  ;  Goodwin 
V.  Jones,  3  Mass.  R.  514  ;  Davis  v.  Estey,  8  Pick.  R.  475  ;  Dawes  v.  Head, 
3  Pick.  R.  128  ;  Doolittle  v.  Lewis,  7  Johns.  Ch.  R.  45,  47  ;  McRae's  Ad- 
ministrators 1'.  McRae,  11  Louis.  R.  571.  —  In  the  case  of  the  Selectmen 
of  Boston  V.  Boylston,  2  Mass.  R.  384,  391,  Mr.  Justice  Sedgwick,  in 
delivering  the  opinion  of  the  Court,  after  adverting  to  the  fact,  that  the 
testator  died  in  England,  and  that  administration  was  there  granted  of  his 
estate  to  the  defendant  cum  testamento  annexo,  and  that  the  defendant 
took  out  ancillary  letters  of  administration  in  Massachusetts,  where  the 
suit  was  brought,  and  in  respect  whereof  he  was  called  upon  to  account 
with  the  plaintiffs  for  the  assets  both  in  England  and  America,  said  ;  "  The 
Judge  of  Probate  has,  in  this  case,  proceeded,  and  in  all  similar  cases  must 
proceed,  according  to  the  powers,  which  are  delegated  to  him  by  this 
statute.     He  can    exercise   no   other  powers.     He  has   granted   to   the 
respondent  administration  on  the  estate  of  Thomas  Boylston,  lying  in 
this  government,  with  the  will  annexed.     All  the  authority  then,  given  to 
the  administrator,  is  over  the  estate  lying  in  this  government.  '  The  Judge 
is  to  settle  the  said  estate.     What  estate?    Clearly,  I  think,  the  estate 
lying  in  this  government.     And  it  will  neither  consist  with  the  intention 
of  the  legislature,  nor  the  purposes  of  justice,  because  the  administrator, 
with  the  will  annexed,  is  here,  to  proceed  upon  the  fiction,  that  by  his 
relation  to  the  testator,  in  the  same  capacity,  in  England,  we  ought  to 
consider  all  the  assets  possessed  by  him  there,  as  the  estate  of  the  testator 
lying  in  this  government ;  because  the  estate  by  the  statute  subjected  to 
the  control  of  the  court  of  probate,  and  to  be  settled  by  it,  was  that  which 
was  lying  here  before  granting  the  letters  of  administration.     To  that  and 
to  that  only,  do  the  words,  and,  as  I  think,  the  meaning  of  the  legislature 
extend.     The  argument  from  the  inconveniences  of  admitting  the  construc- 
tion, for  which  the  counsel   for  the  appellants  have   contended,  is  strong 
and  irresistible.     It  may  reasonably  be  presumed,  that  the  largest  part  of 
the  testator's  estate  lies  in  the  country,  where  the  original  administration 
is  granted  ;  and  that  there  also  is  the  greatest  portion  of  claims  upon  it. 
For  what  purpose  of  utility  is  the  property  to  be  transported  to  a  distant 
region,  and  those  to  whom  it  belongs  compelled  to  follow  it,  for  the  satis- 
faction of  their  demands?     The  expense  and  trouble  of  such  a  procedure, 
while  vi'holly  unnecessary,  could  not  fail  to  be  considerable.     Suppose  an 
English  merchant  of  great  property  and  extensive  dealings  to  have  been 
the  testator:  suppose  this  property  to  be  principally  in  England,  but  por- 
tions of  it  to  be  left  in  several  foreign  countries,  and  that  the  administrator 


CH.  xiil]  foreign  administrations.  879 

English  authorities  are  to  the  same  effect.     They  fully 
establish  the  doctrine,  that,  if  a  foreign  executor  or 


appointed  there  goes  to  collect  it,  and  seeks  the  aid  of  the  foreign  govern- 
ments for  that  purpose  ;  and  they  under  pretence  of  giving  this  aid,  claim 
an  authority  of  drawing  within  their  jurisdiction  all  the  personal  property 
of  the  testator,  and  all  those  who  have  demands  upon  it,  or  are  interested 
in  it.  All  these  governments  are  independent  of  each  other  ;  and  what  is 
to  establish  a  right  of  precedence?  The  commencement  of  a  prosecution t 
How  is  this  to  be  known  1  How  are  the  other  authorities  to  be  controlled  1 
If  this  is  to  be  the  construction,  who  will  become  bound  for  the  adminis- 
trator? By  what  means  can  the  liability  of  the  administrator  and  his 
sureties  be  known?  In  terms  they  only  guarantee  the  settlement  of  the 
estate  lying  within  the  commonwealth  ;  but  in  effect,  if  this  construction 
be  admitted,  estate  lying  in  every  part  of  the  globe.  It  is,  in  our  opinion, 
impossible,  that  such  could  have  been  the  intention  of  the  legislature. 
There  are  innumerable  other  inconveniences,  which  might  be,  but  which  it 
is  unnecessary  should  be  pointed  out."  In  Goodwin  v.  Jones,  3  Mass.  R. 
514,  519,  520,  Mr.  Chief  Justice  Parsons  in  delivering  the  opinion  of  the 
Court  said  :  "  When  any  person,  an  inhabitant  of  another  State,  shall  die 
intestate,  but  leaving  real  estate  within  this  Commonwealth,  if  adminis- 
tration should  not  be  granted  by  some  judge  of  probate  of  a  county,  in 
which  the  estate  lies,  there  would  be  no  legal  remedy  for  the  creditors  of 
the  deceased  to  avail  themselves  of  his  real  estate  for  the  payment  of  the 
debts  due  them.  Therefore  to  prevent  a  failure  of  justice,  administration 
in  such  case  must  be  granted  by  some  Probate  Court  here ;  and  the  ad- 
ministrator so  appointed  will,  by  virtue  of  his  letters  of  administration  and 
of  the  laws,  also  have  the  administration  of  all  the  goods,  chattels,  rights, 
and  credits  of  the  intestate,  which  were  within  the  state.  And  if  a  fo- 
reign administrator  of  that  intestate  should  also  have  the  administration  of 
his  personal  estate  here,  there  would  exist  two  administrators  of  the  same 
goods  of  the  same  intestate,  independent  of  each  other,  and  deriving  their 
authority  from  different  States,  a  consequence  which  cannot  be  admitted. 
But  the  granting  of  administration  here  cannot  divest  the  foreign  adminis- 
trator of  any  rights  already  vested  in  him  ;  and  the  necessary  inference 
is,  that  whether  administration  be,  or  be  not,  granted  in  this  State,  an 
administrator  appointed  in  another  State  cannot  legally  claim  any  interest 
in  the  goods  of  his  intestate,  which  are  subject  to  an  administration  grant- 
ed in  this  State.  And  it  is  no  objection  to  this  reasoning,  that  debts  due  to 
the  intestate  on  simple  contract  are  to  be  considlered  as  goods  situate 
where  he  dies.  For  if  the  position  be  admitted,  contrary  to  the  authority 
of  Wentworlh,  in  his  Executor  (page  46,)  where  it  is  supposed,  that  such 
debts  are  bona  notabilia  where  the  debtor  lives  ;  yet  the  administrator,  if 


880  CONFLICT    OF   LAWS.  [CH.   XIII. 

administrator  brings  or  transmits  property  here,  which 
he  has  received  under  the  administration  abroad,  or  if  he 
is  personally  present,  he  is  not  either  personally  or  in 


he  recover  judgment  on  such  contract  in  this  State,  may  satisfy  it  by  an 
extent  on  lands,  which  certainly  in  their  disposition  are  exclusively  subject 
to  the  control  of  the  laws  of  the  Commonwealth.  We  have  no  particular 
statute  relating  to  foreign  administrators ;  but  the  manner,  in  which  an 
executor  of  a  will  proved  without  the  State  may  execute  his  trust  within, 
is  regulated  by  the  statute  of  1785,  June  19,  c.  12.  The  executor,  or  any 
person  interested  in  any  will  proved  without  the  Stale,  may  produce  a 
copy  of  it,  and  of  the  probate  under  the  seal  of  the  foreign  court,  which 
proved  it,  before  the  judge  of  probate  of  any  county,  where  the  testator 
had  real  or  personal  estate,  whereon  the  will  may  operate,  and  request  to 
have  the  same  filed  and  recorded,  which  the  judge,  after  notice  and  hear- 
ing all  parties,  may  order  to  be  done  :  and  he  may  then  take  bonds  of  the 
executor,  or  may  grant  administration  cum  testamento  annexo  of  the  testa- 
tor's estate  lying  in  this  government  not  administered,  and  may  settle  the 
estate,  as  in  cases,  where  the  will  has  been  proved  before  him.  This 
statute  needs  no  explanation.  The  executor  of  a  will  proved  without  the 
State  cannot  intermeddle  with  the  effects  of  the  testator  in  the  State,  but 
with  the  assent  of  a  judge  of  probate,  to  whom  he  must  first  give  bond. 
Neither  can  an  administrator  with  the  will  annexed  intermeddle,  unless  he 
is  appointed  by  some  judge  within  the  State,  who  has  authority  to  settle 
the  whole  estate  within  his  jurisdiction.  And  it  would  be  inconsistent 
with  the  manifest  intent  of  the  statute  to  allow  an  administrator  of  an 
intestate,  not  an  inhabitant  or  resident  within  the  State  at  his  death,  an 
authority  derived  from  a  foreign  administration,  which  he  could  not  have 
under  the  foreign  probate  of  a  will,  of  which  he  was  the  executor."  In 
Doolitlle  V.  Lewis,  7  Johns.  Ch.  R.  45,  47,  Mr.  Chancellor  Kent  said  : 
"  It  is  well  settled,  that  a  party  cannot  sue  or  defend  in  our  courts,  as  exe- 
cutor or  administrator,  under  the  authority  of  a  foreign  court  of  probates. 
Our  Courts  take  no  notice  of  a  foreign  administration  ;  and  before  we  can 
recognize  tiie  personal  representative  of  the  deceased,  in  his  representative 
character,  he  must  be  clothed  with  authority  derived  from  our  law.  Ad- 
ministration only  extends  to  the  assets  of  the  intestate  within  the  State  where 
it  was  granted ;  if  it  were  otherwise  the  assets  might  be  drawn  out  of  the 
State,  to  the  great  inconvenience  of  the  domestic  creditors,  and  be  distriliuted 
perhaps,  on  very  different  terms,  according  to  the  laws  of  another  jurisdic- 
tion. The  authorities  on  this  subject  were  cited  by  me  in  the  case  of 
Morrell  v.  Dickey,  (1  Johns.  Rep.  151,)  and  I  presume  there  is  no  dispute 
about  the  general  rule  ;  and  llie  only  difliculty  lies  in  the  application  of  it 
to  this  particular  case." 


CH.  XIII.]  FOREIi^N   ADMINISTRATIONS.  881 

his  representative  capacity,  liable  to  a  suit  here  ;  nor  is 
such  property  liable  here  to  creditors ;  but  they  must 
resort  for  satisfliction  to  the  forum  of  the  original  ad- 
ministration.^ So,  where  property  is  remitted  by  a 
foreign  executor  to  this  country  to  pay  legacies,  no  suit 
can  bo  maintained  for  it,  if  there  is  no  specific  appro- 
priation of  it,  without  an  administration  taken  out  here.- 
§  515.  But,  although  an  executor  or  administrator  is 
not  entitled  to  maintain  a  suit  in  a  foreign  court,  in 
virtue  of  his  original  letters  of  administration ;  yet,  it 
has  been  said,  that,  if  a  debtor  chooses  voluntarily  there 
to  pay  him  a  debt  which  he  may  lawfully  receive  under 
that  administration,  the  debtor  will  be  discharged.^ 
This  proposition  is,  or  at  least  may  be  true  to  the 
extent,  in  which  it  is  thus  guardedly  laid  down  and 
limited.  For  if  an  administration  should  be  taken 
out  on  a  creditor's  estate  in  the  country,  where  both 
the   creditor  and  debtor   resided   at   the   time  of  his 


1  Currie,  Administrator  v.  Bircham,  1  Dowl.  &  Ryl.  R.  34;  Davis  u. 
Estey,  8  Picic.  R.  475  ;  Attor.-Geii.  v.  Bouwens,  4  Mees.  &  VVels.  R. 
171,  191  ;  Tyler  v.  Bell,  1  Keen,  R.  S2G,  829  ;  S.  C.  2  Mylne  &  Craig, 
89,  109,  110;  Attor.-Gen.  v.  Dimond,  1  Cromp.  &  Jerv,  R.  356,  371  ; 
Spratt  V.  Harris,  4  Hagg.  Eccl.  R.  408 ;  Attor.-Gen.  v.  Hope,  2  Clark  & 
Finnell.  R.  84,  90,  92  ;  S.  C.  8  Bligh,  R.  44  ;  1  Cromp.  Mees.  &  Rose. 
538.  But  see  Dovvdale's  case,  G  Co.  R.  47,  and  Anderson  v.  Gaunter,  2 
Mylne  &  Keen,  703  ;  Spratt  i\  Harris,  4  Hagg.  Eccl.  R.  405,  408  ;  ante, 
^  513,  ^  514  a.  la  Scrimshire  v.  Scrimshire,  (2  Hagg.  Consist.  R.  420,) 
Sir  Edward  Simson  said  ;  "  If  an  Englishman  makes  a  will  abroad,  and 
makes  a  foreigner  executor,  and  has  no  effects  in  England,  and  the  execu- 
tor proves  the  will  lawfully  abroad,  that  probate,  or  sentence  of  the  proper 
court,  establishing  the  will,  as  to  effects  there,  of  a  man  domiciled  there, 
would  be  a  bar  to  a  discovery  in  chancery  of  effects  abroad." 

2  Logan  V.  Fairlie,  2  Sim.  &  Stu.  R.  284. 

3  The  proposition  is  thus  guardedly  laid  down,  in  Stevens  v.  Gaylord, 
11  Mass.  R.  256.  But  the  question  may  also  arise,  whether  the  volun- 
tary payment  of  a  debt  by  a  domestic  debtor  in  a  foreign  country  lo  a  fo- 
reign administrator,  when  there  is  no  domestic  administrator  appointed, 

74* 


882  CONFLICT    OF   LAWS.  [CH.  XIII. 

death,  there,  inasmuch  as  a  debt  is  properly  due  in 
that  country,  and  properly  falls  within  that  adminis- 
tration, it  may  be  paid  voluntarily  by  the  debtor  in 
another  country,  if  he  should  afterwards  change  his 
domicil  to  that  country,  or  if  he  should  be  found  there ; 
and  the  discharge  of  the  administrator  will  be  held 
a  good  discharge  everywhere  else,  although  no  new 
administration  be  taken  out ;  because  the  right  to 
receive  it  primarily  attached,  where  the  original  admi- 
nistration was  granted.  Thus,  for  example,  if  an  intes- 
tate should  die  in  Ireland,  leaving  a  bond  debt  there 
due  by  a  debtor,  residing  there  at  the  time  of  his  death, 
that  bond  debt  would  be  hona  notabilia  there,  and  a  pay- 
ment afterwards  by  the  debtor  made  in  England  to  such 
administrator  would  or  might  be  a  good  discharge,  not- 
withstanding no  administration  were  taken  out  in  Eng- 
land.^ 

§  515  a.  There   is,   however,  (as  has  been  already 
stated,^)  much  reason  to  doubt,  whether  the  doctrine  be 


will  be  a  good  discharge  of  the  debtor.  Debts  are  due  not  only  in  the 
domicil  of  the  debtor,  but  in  the  domicil  of  the  creditor  ;  and  indeed, 
unless  a  particular  place  of  payment  is  appointed,  they  are  due  and  may 
be  demanded  anywhere.  If  a  debtor  be  found  in  the  foreign  country, 
where  the  creditor  died,  and  where  an  administrator  is  appointed,  he 
would  certainly  be  suable  there,  and  could  not  protect  himself  by  a  plea, 
that  he  was  liable  to  pay  only  to  the  administrator  appointed  in  the  place 
of  his  (the  debtor's)  domicil.  Lord  Hardvvicke,  in  Thorne  v.  Watkins, 
(2  Ves.  35,)  said,  that  all  debts  follow  the  person,  not  of  the  debtor  in 
respect  of  the  right  or  property,  but  of  the  creditor  to  whom  due.  In 
Doolittle  V.  Lewis,  (7  Johns.  Ch.  R.  49,)  Mr.  Chancellor  Kent  held,  that 
a  voluntary  payment  to  a  foreign  executor  or  an  administrator  was  a 
good  discharge  of  the  debt.  See  Shultz  v.  Pulver,  3  Paige,  R.  182 ; 
Hooker  r.  Olmstead,  G  Pick.  R.  481  ;  Atkyns  v.  Smith,  2  Atk.  R.  C3  ; 
Trecothick  v.  Austin,  4  Mason,  R.  16,  33. 

1  Hulhwaite  v.  Phaire,  1  Mann.  &  Grang,  159,  and  particularly  what  is 
said  by  Lord  Chief  Justice  Tindal  in  page  1G2. 

2  Ante,  ^  514.     See  Preston  v.  Lord  Melville,  8  Clark  &  Finnell.  1,  14. 


CH.  XIII.]  FOREIGN   ADMINISTRATIONS.  883 

maintainable  to  the  extent,  which  the  proposition  has 
been  sometimes  understood  to  justify ;  that  is  to  say,  so 
as  to  apply  it  to  a  debt  due  by  a  debtor,  who  at  the 
death  of  the  creditor  is  actually  domiciled  in,  and  owes 
the  debt  in  the  foreign  country,  where  no  administra- 
tion is  taken  out.  Suppose  an  administration  should 
afterwards  be  granted  in  the  foreign  country ;  would  it 
be  any  bar  to  an  action  brought  by  the  foreign  adminis- 
trator, against  the  debtor  for  the  same  debt,  that  the 
debtor  had  already  paid  it  to  another  administrator, 
who  had  no  ri2:ht  to  demand  it  in  virtue  of  his  ori- 
ginal  administration,  and  who,  therefore,  might  pro- 
perly be  deemed  a  stranger  to  the  debt  ?  Suppose  a 
contest  to  arise  between  the  original  administrator  and 
the  foreign  administrator  in  relation  to  the  administra- 
tion of  the  debts,  so  received  as  assets  of  the  deceased, 
could  the  original  administrator  retain  it  against  the 
will  of  the  foreign  administrator ;  or  thereby  subject  it 
to  a  different  application  in  the  course  of  administration 
and  marshalling  assets  from  that,  which  w^ould  otherwise 
exist  ?  It  seems  difficult  to  answer  these  questions  in 
the  afBrmative,  without  shaking  some  of  the  best-esta- 
blished principles  of  international  law  on  this  subject.' 

§  516.  And  here  it  may  be  necessary  to  attend  to  a 
distinction,  important  in  its  nature  and  consequences. 
If  a  foreign  administrator  has,  in  virtue  of  his  adminis- 
tration, reduced  the  personal  property  of  the  deceased, 
there  situated,  into  his  own  possession,  so  that  he  has 


1  See  Currie  v.  Bircham,  1  Dowl.  &  Ryl.  R.  35  ;  Tyler  r.  Bell,  1  Keen, 
R.  836  ;  S.  C.  2  Mylne  &  Craig,  89,  109,  110  ;  Attor.-Gen.  v.  Dimond, 
1  Cromp.  &  Jerv.  356,  370  ;  Contra  Anderson  v.  Gaunter,  2  Mylne  & 
Keen,  R.  763.  But  the  latter  case  seems  overruled.  Ante,  ^  513  ;  post, 
^  518,  519,  520,  521,  525  ;  Huthwaite  v.  Phaire,  1  Mann.  &  Grang.  159, 
164,  165. 


884  CONFLICT    OF  LAWS.  [CH.  XIII. 

acquired  the  legal  title  thereto,  according  to  the  laws  of 
that  country;  if  that  property  should  afterwards  be 
found  in  another  country,  or  be  carried  away  and  con- 
verted there  against  his  will,  he  may  maintain  a  suit 
for  it  there  in  his  own  name  and  right  personally,  with- 
out taking  out  new  letters  of  administration  ;  for  he  is, 
to  all  intents  and  purposes,  the  legal  owner  thereof,  al- 
though he  is  so  in  the  character  of  trustee  for  other 
persons.  In  like  manner,  if  a  specific  legacy  of  per- 
sonal property  is  bequeathed  in  a  foreign  country,  and 
the  legatee  has,  under  an  administration  there,  been  ad- 
mitted to  the  full  possession  and  ownership  by  the  ad- 
ministrator, he  may  afterwards  sue  in  his  own  name  for 
any  injury  or  conversion  of  such  property  in  another 
country,  where  the  property  or  wrongdoer  may  be 
found,  without  any  probate  of  the  will  there.*  The 
plain  reason  in  each  of  these  cases  is,  that  the  executor 
and  the  legatee  have,  each  in  his  own  right,  become  full 
and  perfect  legal  owners  of  the  property  by  the  local 
law ;  and  a  title  to  personal  property,  duly  acquired 
by  the  Lex  loci  rei  sitce,  will  be  deemed  valid,  and  be  re- 
spected as  a  lawful  and  perfect  title  in  every  other 
country. 

§  517.  The  like  principle  will  apply,  where  an  exe- 
cutor or  administrator,  in  virtue  of  an  administration 
abroad,  becomes  there  possessed  of  negotiable  notes  be- 
longing to  the  deceased,  which  are  payable  to  bearer ; 
for  then  he  becomes  the  legal  owner  and  bearer  by 
virtue  of  his  administration,  and  may  sue  thereon  in 
his  own  name ;  and  he  need  not  take  out  letters  of.  ad- 


1  See  Commonwealth  v.  Griffith,  2  Pick.  R.  II  ;  Bollard  v,  Spencer,  7 
T.  R.  354  ;  Shipman  v.  Thompson,  Willes,  R.  103  ;  Slack  v.  Walcutt,  3 
Mason,  R.  508,  518. 


en.  XIII.]  FOREIGN   ADMINISTRATIONS.  885 

ministration  in  the  State,  where  the  debtor  resides,  in 
order  to  maintain  a  suit  against  him.'  And  for  a  like 
reason,  it  would  seem,  that  negotiable  paper  of  the  de- 
ceased, payable  to  order,  actually  held  and  indorsed  by 
a  foreign  executor  or  administrator  in  the  foreign  coun- 
try, who  is  capable  there  of  passing  the  legal  title  by 
such  indorsement,  would  confer  a  complete  legal  title 
on  the  indorsee,  so  that  he  ought  to  be  treated  in  every 
other  country,  as  the  legal  indorsee,  and  allowed  to  sue 
thereon  accordingly,  in  the  same  manner  that  he  would 
be  if  it  were  a  transfer  of  any  personal  goods  or  mer- 
chandise of  the  deceased,  situate  in  such  foreign  coun- 
try.2 

§  517  a.  And  when  an  executor  appointed  abroad  has 
remitted  to  another  country,  (as  for  example,  to  Eng- 
land,) that  fund  to  be  distributed  between  legatees 
there  domiciled  ;  the  distribution  may  be  made  either 
voluntarily  by  the  remittee,  or  enforced  by  a  Court  of 
Equity  in  such  country,  without  any  administration 
being  taken  there,  or  making  the  legal  representative 
of  the  testator  a  party  to  the  suit.^ 

§  518.  Where  there  are  different  administrations, 
granted  in  different  countries,  that  is  deemed  the  prin- 
cipal or  primary  administration,  which  is  granted  in  the 
country  of  the  domicil  of  the  deceased  party ;  for  the 
final  distribution  of  his  ellects  among  his  heirs  or  distri- 
butees is  to  be  decided  by  the  law  of  his  domicil. 
Hence,  any  other   administration,  which  is  granted  in 


1  Robinson  v.  Crandall,  9  Wendell,  R.  425  ;  and  see  Barrett  i'.  Barrett, 
8  Greenleaf,  R.  353.  But  see  Stearns  v.  Burnham,  5  Grcenleaf,  R.  361  ; 
Thompson  v.  Wilson,  2  New  Ilamp.  R.  291  ;  McNeilage  c.  Holioway,  1 
B.  and  Aid.  218  ;  ante,  ^  354,  358,  359. 

2  lb.  and  ante,  ^  358,  359. 

^  Arthur  v.  Hughes,  4  Beavan,  R.  506. 


886  CONFLICT    OF    LAWS.  [CH.   XIIL 

any  other  country,  is  treated  as  in  its  nature  ancillary 
merely,  and  is,  as  we  have  seen,  generally  held  subordi- 
nate to  the  original  administration.^  But  each  admi- 
nistration is,  nevertheless,  deemed  so  far  independent  of 
the  others,  that  property  received  under  one  cannot  be 
sued  for  under  another,  although  it  may  at  the  moment 
be  locally  situate  within  the  jurisdiction  of  the  latter. 
Thus,  if  property  is  received  by  a  foreign  executor  or 
administrator  abroad,  and  it  is  afterwards  remitted  here, 
an  executor  or  administrator  appointed  here  could  not 
assert  a  claim  to  it  here,  either  against  the  person  in 
wdiose  hands  it  might  happen  to  be,  or  against  the  fo- 
reign executor  or  administrator.^  The  only  mode  of 
reaching  it,  if  necessary  for  the  purposes  of  due  admi- 
nistration in  the  foreign  country,  would  be  to  require 
its  transmission  or  distribution,  after  all  the  claims 
against  the  foreign  administration  had  been  duly  ascer- 
tained and  settled.^ 

§  519.  But  suppose  a  case,  where  the  personal  estate 
of  the  deceased  has  not,  at  the  time  of  his  de- 
cease, any  positive  locality  in  the  place  of  his  domicil, 
or  in  any  foreign  territory ;  but  it  is  strictly  in  transitu 
to  a  foreign  country,  and  afterwards  arrives  in  the  coun- 
try of  its  destination.  It  may  be  asked,  in  such  case, 
to  whom  would  the  administration  of  such  property 
rightfully  belong  ?     Would  it  belong  to  the  administra- 


1  Ante,  ^  514. 

2  Currie,  Administrator  v.  Bircham,  1  Dow].  &  Ryl.  R.  35.  See  Jaun- 
cey  V.  Seeley,  1  Vern.  R.  397  ;  ante,  ^  513,  515,  ^  515  a.  See  Huth- 
waite  V.  Phaire,  I  Mann.  &  Grang.  159. 

3  See  Dawes  v.  Head,  3  Pick.  R.  153  to  148  ;  Harvey  v.  Richards,  1 
Mason,  R.  381  ;  ante,  §  513,  and  note,  ^  514  ;  Selectmen  of  Boston  v. 
Dawes,  2  Mass.  R.  384  ;  Goodwin  v.  Jones,  3  Mass.  R.  514  ;  Dawes  v. 
Boylston,  9  Mass.  R.  337. 


CH.  XIII.]  FOREIGN   ADMINISTRATIONS.  887 

tor  in  the  place  of  the  domicil  of  the  deceased,  or  to 
the  administrator  appointed  in  the  place,  where  it  had 
arrived  ?  And  if  (as  may  "well  happen  in  the  case  of  a 
ship  and  cargo  sent  abroad)  the  propert}^,  or  its  pro- 
ceeds, should  afterwards  return  to  the  domicil  of  the 
original  owner,  would  the  administrator,  there  appointed 
be  entitled  to  take  it,  and  bound  to  account  for  it,  in 
the  due  course  of  administration?  Practically  speak- 
ing, no  doubt  is  entertained  on  this  subject ;  and  the 
property,  whenever  it  returns  to  the  country  of  the  do- 
micil of  the  owner,  whether  by  remittance  or  otherwise, 
is  understood  to  be  under  the  administration  of  the  ad- 
ministrator appointed  there.  Nor  has  there  been  a 
doubt  hitherto  judicially  expressed,  that  property,  so 
sent  abroad,  and  returned,  might  and  should  be  so  ad- 
ministered, and  that  all  parties  would  be  protected  by 
the'r  d  ings  in  regard  to  it. 

§  520.  Indeed,  according  to  the  common  course  of  com- 
mercial business,  ships  and  cargoes,  and  the  proceeds 
thereof,  locally  situate  in  a  foreign  country  at  the  time 
of  the  death  of  the  owner,  always  proceed  on  their 
voyages,  and  return  to  the  home  port,  without  any  sus- 
picion, that  all  the  parties  concerned  are  not  legally 
entitled  so  to  act ;  and  they  are  taken  possession  of,  and 
administered  by  the  administrator  o?  the  fojwu  domiciUi, 
with  the  constant  persuasion,  that  he  may  not  only 
rightfully  do  so,  but  that  he  is  bound  to  administer 
them,  as  part  of  the  funds  appropriately  in  his  hands. 
A  different  course  of  adjudication  would  be  attended 
with  almost  inextricable  difficulties,  and  would  involve 
this  extraordinary  result,  that  all  the  personal  property 
of  the  deceased  must  be  deemed  to  have  a  fixed  situs, 
where  it  was  at  the  moment  of  his  death;  and,  if  re- 
moved from  it,  must  be  returned  thither   for  the  pur- 


888  CONFLICT    OF    LAWS.  [CH.  XIIL 

pose  of  a  due  administration.  Na}'-,  debts  due  in  a 
foreign  country  would  be  absolutely  required  to  be  re- 
tained there,  until  a  local  administration  was  obtained  ; 
and  could  not  without  peril  be  voluntarily  remitted  to 
the  creditor's  domicil.  And  if  the  debtor  should,  in  the 
mean  time,  remove  to  another  country,  it  might  become 
matter  of  extreme  doubt  whether  a  payment  to  a  local 
administrator  there  would  discharge  him  from  the  debt.' 

But  it  may,  perhaps,  after  all,  be  doubtful  whether, 
with  a  strict  regard  to  the  principles  of  international 
law,  the  personal  property  of  the  deceased  testator  or 
intestate,  whether  it  consisted  of  goods  or  of  debts, 
situate  at  the  time  of  his  death  in  a  foreign  country, 
could  be  lawfully  disposed  of,  except  under  an  adminis- 
tration granted  in  that  country,  although  they  had 
since  been  removed,  or  transmitted  to  the  domicil  of 
the  deceased,  and  had  been  received  by  his  administra- 
tor appointed  there.^ 

§  521.  A  case,  illustrative  of  these  remarks,  has  re- 
cently occurred.  The  personal  estate  of  an  intestate 
consisted  in  a  considerable  degree  of  stage-coaches  and 
stage-horses,  belonging  to  a  daily  line,  running  from  one 
State  to  another;  and  letters  of  administration  were 
taken  out  by  the  same  person  in  both  States,  one  being 
that  of  the  intestate's  domicil.  A  question  arose,  under 
which  administration  the  property  was  to  be  accounted 
for,  part  of  it  being  in  one  State  and  part  in  the  other, 
and  part  in  transitu  from  one  to  the  other,  at  the  moment 
of  the  intestate's  death.  The  learned  Chancellor  of 
New  York  said,  that,  if  administration  had  been  granted 


1  See  Stevens  v.  Gaylord,  11  Mass.  R.  25G  ;  ante,  §  515,  ^  515  a. 

2  See  ante,  §  513  to  §  518  ;  post,  §  525. 


CH.  XIII.]  FOREIGN   ADMINISTRATIONS.  889 

to  different  individuals  in  the  two  States,  the  property 
must  have  been  considered  as  belonging  to  that  admi- 
nistrator, who  first  reduced  it  to  possession  within  the 
limits  of  his  own  State.  But  that  in  the  case  before 
him,  as  both  administrations  were  granted  to  the  same 
person,  if  an  account  of  administration  were  to  be  taken, 
it  would  be  necessary  to  settle  that  by  ascertaining, 
what  had  been  inventoried  and  accounted  for  by  him 
under  the  administration  in  the  other  State.^ 

§  522.  Where  administrations  are  granted  to  differ- 
ent persons  in  different  States,  they  are  so  far  deemed 
independent  of  each  other,  that  a  judgment  obtained 
against  one  will  furnish  no  right  of  action  against  the 
other,  to  affect  assets  received  by  the  latter  in  virtue  of 
his  own  administration ;  for,  in  contemplation  of  law, 
there  is  no  privity  between  him  and  the  other  adminis- 
trator.^ It  might  be  different,  if  the  same  person  were 
administrator  in  both  States.^  On  the  other  hand,  a 
judgment,  recovered  by  a  foreign  administrator  against 
the  debtor  of  his  intestate,  will  not  form  the  foundation 
of  an  action  against  the  debtor  by  an  ancillary  adminis- 
trator appointed  in  another  State."*  But  the  oreign  ad- 
ministrator himself  might  in  such  a  case  maintain  a  per- 
sonal suit  against  the  debtor  in  any  other  State ;  be- 
cause the  judgment  would,  as  to  him,  merge  the  ori- 
ginal debt,  and  make  it  personally  due  to  him  in  his 
own  right,  he  being  responsible  therefor  to  the  estate.^ 

§  523.  So  strict  is  the  principle,  that  a  foreign  ad- 


1  Orcutt  V.  Orms,  3  Paige,  R.  459. 

2  Lightfoot  V.  Bickley,  2  Rawle,  R.  431. 

3  Lightfoot  u.  Bickley,  2  Rawle,  R.  431. 

4  Talmage  v.  Chapel,  16  Mass.  R.  71. 

•>  Ibid.     But  see  Smith  v.  Nicolls,  5  Bing.  New  Cas.  p.  208  ;  post,  607. 

CONFL.  75 


890  CONFLICT    OF   LAWS.  [CH.  XIIL 

ministrator  cannot  do  any  act,  as  administrator,  in  ano- 
ther State,  that,  where  the  local  laws  convert  real  secu- 
rities in  the  hands  of  an  administrator  into  personal 
assets,  which  he  may  sell  or  assign,  he  cannot  dispose 
of  such  real  securities,  until  he  has  taken  out  letters  of 
administration  in  the  place  7^ei  sitm}  Thus,  mortgages 
are  declared  by  the  laws  of  Massachusetts  to  be  personal 
assets  in  the  hands  of  administrators;  and  disposable  by 
them  accordingly.  But  the  authority  cannot  be  exer- 
cised by  any,  except  administrators,  who  have  been, 
duly  appointed  within  the  State.^  On  the  other  hand, 
if  an  administrator  sells  real  estate  for  the  payment  of 
debts,  pursuant  to  the  authority  given  him  under  the 
local  laws  m  sitce,  he  is  not  responsible  for  the  proceeds 
as  assets  in  any  other  State ;  but  they  are  to  be  dis- 
posed of.  and  accounted  for,  solely  in  the  place  and  in 
the  manner  pointed  out  in  the  local  laws.^ 

§  524.  In  relation  to  the  mode  of  administering  assets 
by  executors  and  administrators,  there  are  in  different 
countries  very  diiferent  regulations.  The  priority  of 
debts,  the  order  of  payments,  the  marshalling  of  assets 
for  this  purpose,  and,  in  cases  of  insolvency,  the  mode 
of  proof,  as  well  as  the  mode  of  distribution,  differ  in 
different  countries.^  In  some  countries,  all  debts  stand 
in  an  equal  rank  and  order  ;  and,  in  cases  of  insolvency, 
the  creditors  are  to  be  paid  j>?«W  ]mssu.     In  others, 

1  Goodwin  v.  Jones,  3  Mass.  R.  514,  519.  See  Bissell  v.  Briggs,  9 
Mass.  R.  467,  468.  But  see  Doolittle  v.  Lewis,  7  Johns.  Ch.  R.  45,  47  ; 
Attor.-Gen.  v.  Bouwens,  4  Mees.  &  Welsh.  171,  191,  192. 

2  Cutter  V.  Davenport,  1  Pick.  R.  80.  But  see  Doolittle  v.  Lewis,  7 
Johns.  Ch.  R.  45,  47. 

3  Peck  V.  Mead,  2  Wendell,  R.  471  ;  Hooker  v.  Olmstead,  6  Pick.  R. 
481,  483  ;  Goodwin  v.  Jones,  3  Mass.  R.  514,  519,  520. 

4  Harvey  r.  Richards,  1  Mason,  R.  421  ;  ante,  ^  323  to  §  328,  ^  401  to 
§403. 


CH.  XIII.]  FOREIGN   ADMINISTRATIONS.  891 

there  are  certain  classes  of  debts  entitled  to  a  priority 
of  payment ;  and  tliey  are  therefore  deemed  privileged 
debts.  Thus,  in  England,  bond  debts  and  judgment 
debts  possess  this  privilege ;  and  the  like  law  exists  in 
some  of  the  States  of  this  Union.'  Similar  provisions 
may  be  found  in  the  law  of  France  in  favor  of  particular 
classes  of  creditors.-  On  the  other  hand,  in  Massachu- 
setts, and  in  many  other  States  of  the  Union,  all  debts, 
except  those  due  to  the  government,  possess  an  equal 
rank,  and  are  payable  pari  passu.  Let  us  suppose, 
then,  that  a  debtor  dies  domiciled  in  a  country  where 
such  priority  of  right  and  privilege  exists  ;  and  he  has 
personal  assets  situate  in  a  State  where  all  debts  stand 
in  an  equal  rank,  and  administration  is  duly  taken  out 
in  the  place  of  his  domicil,  and  also  in  the  place  of  the 
situs  of  the  assets.  What  rule  is  to  govern  in  the  mar- 
shalling of  the  assets  ?  The  law  of  the  domicil  ?  Or 
the  law  of  the  situs  ?  The  established  rule  now  is,  that 
in  regard  to  creditors  the  administration  of  assets  of  de- 
ceased  persons  is  to  be  governed  altogether  by  the  law 
of  the  country  where  the  executor  or  administrator  acts, 
and  from  which  he  derives  his  authority  to  collect  them  ; 
and  not  by  that  of  the  domicil  of  the  deceased.  The 
rule  has  been  laid  down  with  great  clearness  and  force 
on  many  occasions.^ 


^  Smith  Administrator  t'.  Union  Bank  of  Georgetown,  5  Peters,  R.  518. 

2  Merlin,  Repertoire,  Privilege  ;  Civil  Code  of  France,  art.  2092  to 
2106. 

3  See  Harrison  v.  Sterry,  5  Cranch,  299  ;  Milne  v.  Moreton,  4  Binn. 
R.  353,  3G1  ;  Olivier  v.  Townes,  14  Martin,  R.  93,  99  ;  ante,  ^  388  ;  De 
Sobry  v.  De  Laistre,  2  Harr.  &  Johns.  R.  193,  224  ;  Smith  Administrator 
V.  Union  Bank  of  Georgetown,  5  Peters,  R.  518,  523  ;  Daws  v.  Head,  3 
Pick.  R.  128  ;  Holmes  v.  Remsen,  20  Johns.  R.  265  ;  Case  of  Miller's 
Estate,  3  Rawle,   R.   312;   McElmoyle  v.  Cohen,   13  Peters,  R.  312. 


892  CONFLICT    OF   LAWS.  [CH.  XIIL 

§  525.  The  ground,  upon  which  this  doctrine  has 
been  established,  seems  entirely  satisfactory.  Every 
nation,  having  a  right  to  dispose  of  all  the  property 
actually  situated  within  it,  has  (as  has  often  been  said) 
a  right  to  protect  itself  and  its  citizens  against  the  in- 
equalities of  foreign  laws,  which  are  injurious  to  their 
interests.  The  rule  of  a  preference,  or  of  an  equality 
in  the  payment  of  debts,  whether  the  one  or  the  other 
course  is  adopted,  is  purely  local  in  its  nature,  and  can 
have  no  just  claim  to  be  admitted  by  any  other  nation, 
which  in  its  own  domestic  arrangements  pursues  an  op- 
posite policy.  And  in  a  conflict  between  our  own  and 
foreign  laws,  the  doctrine  avowed  by  Huberus  is  highly 
reasonable,  that  we  should  prefer  our  own.  In  tali  con- 
flidii  magis  est,  tit  jus  nostrum,  qiiam  jus  alienum,  ser- 
vemtis} 

§  526.  It  seems,  that  many  foreign  jurists,  but  cer- 
tainly not  all,^  maintain  a  different  opinion,  holding, 
that  in  every  case  the  privileges  of  debts  and  the  rank 
and  order  of  payment  thereof,  are  to  be  governed  by 
the  law  of  the  domicil  of  the  debtor  at  the  time  of  his 
contract,  or  of  his  death.  They  found  themselves  upon 
the  general  rule,  that  the  creditor  must  pursue  his  re- 
medy in  the  domicil  of  the  debtor,  and  that  debts  fol- 


Where  there  are  administrations  and  assets  in  different  States,  and  the 
estate  is  insolvent,  the  general  principle  adopted  by  the  Courts  of  Mas- 
sachusetts is,  to  place  creditors  there,  as  to  the  assets  in  the  State,  upon  a 
footing  of  equality  with  other  creditors  in  the  State,  where  the  party  had 
his  domicil  at  his  death.     Davis  v.  Estey,  8  PicFc.  R.  475. 

1  Huberus,  De  Confl.  Leg.  Lib.  1,  tit.  3,  ^  II.  See  also  Smith  Adm'r 
V.  Union  Bank  of  Georgetown,  5  Peters,  R.  517  ;  ante,  ^  322  to  327. 

2  See  ante,  ^  325  a,  to  325  o,  and  1  Boullenois,  p.  684  to  690  ;  Roden- 
burg  Diversit.  Statut.  tit.  2,  ch.  5,  16  ;  2  Boullenois,  Appx.  p.  47  to 
p.  50. 


CH.  xiil]  foreign  administrations.  893 

low  his  person,  and  not  that  of  the  creditor.^  This  rule 
was  acknowledged  in  matters  of  jurisdiction  in  the 
Homan  law,  in  which  it  is  said ;  Juris  orcUnem  converti 
posiulas,  tit  non  actor  rei  forum,  sed  9'eus  actoris  sequatur. 
Nam,  uhi  domiciUum  reus  hahet,  vel  tempore  contractus  lia- 
huit,  licet  hoc  postea  transtulerit,  iU  tanium  cum  convemi 
oportet?  But  it  by  no  means  follows,  that,  because  this 
was  the  rule  in  the  municipal  jurisprudence  of  Rome, 
therefore  it  ought  to  be  adopted,  as  a  portion  of  modern 
international  law.  Nor  does  it  necessarily  follow,  even 
if  the  rule  were  admitted  to  govern,  as  to  the  forum 
where  the  suit  should  be  brought  against  the  debtor  in 
his  lifetime,  that  upon  his  death,  in  a  conflict  of  the 


1  Livermore,  Diss.  p.  164  to  171  ;  ante,  §  323  to  328.  See  also  §  401 
to  403.  —  Mr.  Livermore  has,  in  his  Dissertations  (p.  164  to  171),  con- 
troverted the  correctness  of  the  American  doctrine  ;  and  he  holds,  that  the 
law  of  the  debtor's  domicil,  at  the  time  when  the  debt  was  contracted,  fur- 
nishes the  true  rule.  Mr.  Henry  lays  down  the  rule,  that  when  the  law 
of  the  domicil  of  the  creditor  and  debtor  differ,  as  to  classing  debls  and 
rights  of  action  among  personal  or  real  property,  the  law  of  the  domicil 
of  the  debtor  must  prevail  in  suits  on  them.  Henry  on  Foreign  Law,  c4, 
35.  Mr.  Dwarris  slates  the  same  rule,  and  quotes  the  maxims,  "  Actor 
sequitur  forum  rei,"  and  "Debita  sequuntur  personam  debitoris."  He 
admits,  indeed,  that  debts  and  rights  of  action  attend  upon  the  person  of 
the  creditor,  "  Inhaerent  ossibus  creditoris  "  ;  but,  to  recover  them,  one 
must  follow  the  forum  rei,  and  person  of  the  debtor.  If  the  question 
regard  the  distribution  of  the  creditor's  estate,  the  law  of  his  domicil  is  to 
be  observed.  If  the  question  is,  in  wiiat  degree  or  proportion  the  repre- 
sentatives of  the  debtor  should  be  charged  with  payment  from  his  effects, 
then  it  is  of  a  passive  nature,  and  the  law  of  the  domicil  of  the  debtor 
should  be  followed.  Dwarris  on  Statut.  650.  It  would  be  difficult  to 
point  out  in  the  English  law  any  autliority  in  support  of  this  doctrine. 
See  also  Dumoulin's  and  Casaregis's  opinions  cited  in  Livermore's  Diss. 
162,  163;  Molin,  Opera,  Tom.  1.  In  consuetud.  Paris.  De  fiefs,  tit.  1, 
§  1,  Gloss.  4,  n.  9,  p.  56,  57,  edit.  1681  ;  Casaregis  in  Ruhr.  Stat,  Civ. 
Genuaj  de  Success,  ab  Intest.  n.  64,  Tom.  4,  p.  42,  43  ;  ante,  §  323,  to 
328. 

2  Cod.  Lib.  3,  tit.  13,  1.  2. 


894  CONFLICT    OF   LAWS.  [CH.  XIIL 

rights  and  privileges  of  creditors  [concursiis  creditonim) 
of  different  countries,  the  municipal  law  of  the  country 
of  the  debtor  should  overrule  the  jurisprudence  of  the 
situs  of  the  effects.^ 

§  527.  This,  however,  seems  to  be  the  doctrine  of 
Coquille,  Moevius,  Carpzovius,  Burgundus,  Rodenburg, 
Matth£eus,  and  Gaill.^  But  it  is  manifest,  from  the 
language  used  by  them,  that  it  is  a  matter  of  no  small 
difficulty ;  and  a  diversity  of  laws  and  opinions  may 
well  be  presumed  to  exist  in  regard  to  it.  Boullenois 
holds  the  same  doctrine.^  Hertius  seems  in  one  pas- 
sage to  affirm  it,  saying ;  ;SV  de  re  immohiU  agiiur,  spec- 
tandas  esse  leges  situs  rei  induhium  est,  etiamsi  piiilegium 
in  ea  propter  qiialitatem  personce  tribucdur.  At  in  rebus  mo- 
Ulihus,  si  ex  contractu  vel  quasi  agcdur,  locus  contractus 
inspiciendus  esset.  Enimvero,  quia  antelatio  ex  jure 
singulari  vel  privilegio  competit,  non  debet  in  prcejudi- 
ciwn  illius  civitatis,  sub  qua  debitor  elegit,  et  res  ejus  mo- 
biles contineri  censeatur,  extendi.  Ad  jura  igitur  domicilii 
debitoris,  ubi  jit  concursus  creditonim,  et  quo  omnes  cnjus- 


1  Ante,  §  332  to  §  337. 

2  Livermore,  Diss.  ^  254  to  ^  257,  p.  166  to  171  ;  Rodenburg,  De  Div. 
Stat.  tit.  2,  ch.  5,  ^  16  ;  2  Boullenois,  Appx.  p.  47  ;  ante,  ^  324  to  325  o  ; 
1  Boullenois,  p.  686  to  p.  687  ;  Id.  Observ.  30,  p.  818  to  p.  834  ;  Bouhier, 
Cout.  de  Bourg.  ch.  21,  ^  204,  ch.  22,  ^  151  ;  Ma3vius,  Comm.  in  Jus 
Lubesence,  Lib.  3,  tit.  1,  art,  11,  n.  24  to  n.  27,  p.  39,  40  ;  Id.  art.  10,  n. 
51,  p.  33  ;  Mattheeus,  de  Auction.  Lib.  1,  ch.  21,  §  35,  n.  10,  p.  294,  295  ; 
Gaill,  Observ.  Pract.  Lib.  2,  Observ.  130,  n.  12,  13,  14,  p.  563 ;  Burgun- 
dus, Tract.  2,  n.  21,  p.  72,  edit,  1621  ;  ante,  ^  324  to  ^  327.— Not  having 
access  to  the  works  of  Carpzovius  and  Coquille,  I  am  obliged  to  rely  on 
the  citations,  which  I  find  in  Livermore's  Dissertations  of  Coquille's 
opinion,  and  upon  Rodenburg,  Masvius,  (ubi  supra,)  and  Hertius  for  the 
citations  from  Carpzovius.  The  other  Authors  I  have  examined,  and  the 
citations  are  correct.     Ante,  §  324  to  ^  327  ;  post,  ^  582. 

3  1  Boullenois,  p.  818  ;  Id.  Observ.  30,  p.  834. 


CH.  XIII.]  FOREIGN   ADMINISTRATIONS.  895 

cimqiie  generis  lites  adversiis  ilium  debiiorem  jjropter  con- 
nexitatem  causce  traJmntiw,  regulariter  respiciendiim  erit} 
Yet  he  afterwards  admits  that  cases  may  exist,  where 
undue  preferences,  given  by  the  local  laws  of  one  State 
in  favor  of  its  own  subjects,  may  be  met  with  a  just  re- 
taliation by  others.^  He  cites  a  passage  from  Huberus,^ 
which  would  seem  to  show,  that  the  latter  was  of  a  dif- 
ferent opinion.  A  creditor  (says  Iluberus)  upon  a  bill 
of  exchange,  exercising  his  right  in  a  reasonable  time, 
has  a  preference  in  Holland  over  all  other  creditors 
upon  the  movable  property  of  his  debtor.  He  has  pro- 
perty of  the  like  kind  in  Friesland,  where  no  such  law 
exists.  Will  such  a  creditor  be  there  preferred  to  other 
creditors  ?  By  no  means  j  since  those  creditors,  by  the 
laws  there  received,  have  already  acquired  a  right. 
Creditor  ex  causa  camhii,  jus  suum  in  tempore  exerccns, 
prcefcrtur  apiid  Batavos  omnihus  aliis  dehitoribus  [creditori- 
bus  ?]  in  bona  mobilia  debitoris.  Hie  Jmhet  ejusmodi  res  in 
Fiisid,  ubi  Jwcjus  non  obtinet.  An  ibi  creditor  etiam  prce- 
feretur  cdiis  creditoribus  ?  Nullo  modo  ;  quoniam  heic  cre- 
ditoribus,  vilccjum  Jiic  rcceptarum  jus  pridem  qucusitum  cst^ 
Upon  this  Hertius  remarks.  Niniirwn  recti  disceret  in 
sect,  antec.  non  teneri  Potestates  sequijiis  cdienwn  infrcmd- 
em  sill  juris,  et  civium  suorum.  Hine  in  quibusdam  Ger- 
manice  regionibus  cives  et  incolcc  in  concursu  creditormn  ante- 
habentur  exteris,  et  iwo  consuetiidinc,  qiice  Bibcraci  est,  lit 


'  1  Hertii,  Opera,  De  Collis.  Leg.  §  4,  n.  64,  p.  150,  edit.  1737 ;  Id.  p. 
211,  edit.  1716  ;  ante,  ^  325  b. 

2  Id. 

3  Huberus,  J.  P.  Univers.  ch.  10,  §  44. 

*  I  quote  the  passage  as  I  find  it  in  Hertius,  not  having  access  to  the 
work  of  Iluberus  here  referred  to.  Iluberus,  J.  P.  Univers.  cii.  10,  §  44  ; 
1  Hertii,  Opera,  De  Collis.  Leg.  ^  4,  n.  64,  p.  150,  edit.  1737  ;  Id.  p.  211, 
edit.  1716.     See  ante,  ^  325  a.     Should  not  debitorihus  be  creditoribus? 


896  CONFLICT    OF   LAWS.  [CH.  XIII. 

cives  chirogra'phiarii  iwceferantur  extraneis  forensihis,  cinte- 
riorem  hypotliecam  Jiabentihiis,  pronunciatiim  in  Camera  Im- 
periali}  Now,  this  seems  a  virtual  surrender  of  the 
main  ground  in  all  cases  where  there  is  a  conflict  of 
laws,  as  to  the  priorities  and  preferences  of  creditors, 
between  the  law  of  the  domicil  of  the  debtor,  or  of  the 
contract,  and  that  of  the  situs  of  the  movables. 

§  528.  In  the  course  of  administration,  also,  in  dif- 
ferent countries,  questions  often  arise  as  to  particular 
debts,  whether  they  are  properly  and  ultimately  paya- 
ble out  of  the  personal  estate,  or  are  chargeable  upon 
the  real  estate  of  the  deceased.  In  all  such  cases,  the 
law  of  the  domicil  of  the  deceased  will  govern  in  cases 
of  intestacy ;  and,  in  cases  of  testacy,  the  intention  of 
the  testator.  A  case,  illustrating  this  doctrine,  occur- 
red in  England  many  ^^ears  ago.  A  testator  who  lived 
in  Holland,  and  was  seized  of  real  estate  there,  and  of 
considerable  personal  estate  in  England,  devised  all  his 
real  estate  to  one  person,  and  all  his  personal  estate  to 
another,  whom  he  made  his  executor.  At  the  time  of 
his  death,  he  owed  some  debts  by  specialty,  and  some 
by  simple  contract  in  Holland,  and  he  had  no  assets 
there  to  satisfy  those  debts  ;  but  his  real  estate  was  by 
the  laws  of  Holland  made  liable  for  the  payment  of  sim- 
ple contract  debts,  as  well  as  specialty  debts,  if  there 
were  not  personal  assets  to  answer  the  same.  The  cre- 
ditors in  Holland  sued  the  devisee,  and  obtained  a 
decree  there  for  the  sale  of  the  lands  devised  for  the 
payment  of  their  debts.  And  then  the  devisee  brought 
a  suit  in  England  against  the  executor  (the  legatee  of 


1  1  Hertii,  Opera,  De  Collis.  Leg.  H>  "•  64,  p.  150,  edit.  1737 ;  Id.  p. 
211,  212,  edit.  1716  ;  ante,  ^  325  b. 


CH.    XIII.]  FOREIGN   ADMINISTRATIONS.  897 

the  personalty)  for  reimbursement  out  of  the  personal 
estate.  The  Court  decided  in  his  favor,  upon  the  ground, 
that  in  Holland,  as  in  England,  the  personal  estate  was 
the  primary  fund  for  the  payment  of  debts,  and  that  it 
should  come  in  aid  of  the  real  estate,  and  be  in  the  first 
place  charged.^ 

§  529.  In  the  Scottish  law  the  same  doctrine  is  re- 
cognized, that  is  to  say,  that  the  fund  which  is  prima- 
rily chargeable  with  the  debt,  shall  ultimately  bear  it  in 
exoneration  of  all  other  funds.  But,  in  its  application 
under  the  local  law  to  particular  cases,  an  opposite  re- 
sult may  be  produced  from  that  in  the  case  just  men- 
tioned ;  for  the  personal  estate  is,  in  such  cases,  exone- 
rated, and  the  real  estate  made  to  bear  the  debt.  Thus, 
for  example,  in  Scotland  heritable  J)onds  are  primarily 
payable  out  of  the  real  estate ;  and,  as  we  have  seen, 
the  personal  estate  of  a  person  domiciled,  and  dying  in 
England,  is  held  exonerated  from  the  charge  of  such  a 
heritable  bond,  made  by  him  upon  real  estate  in  Scot- 
land, to  secure  a  debt  contracted  in  England ;  and  the 
Scottish  estate  is  compellable  to  bear  the  burthen.^  On 
the  other  hand,  by  the  law  of  Scotland,  movable  debts 
(in  contradistinction  to  heritable  bonds)  are  primarily 
and  properly  chargeable  upon  the  personal  estate.  The 
creditor  may  indeed  enforce  payment  against  the  real 
estate  in  the  hands  of  the  heir  -,  but  if  he  does  so,  the 
heir  is  entitled  to  relief  against  the  executor  out  of  the 


1  Anonymous,  9  Mod.  R,  66  ;  S.  P.  Bowman  v.  Reeve,  Preced.  Ch. 
511. 

-  Ante,  ^  486,  487,  488  ;  Drummond  v.  Drummond,  6  Brown,  Pari. 
Cases,  550  (Tomlin's  edit.  1803)  ;  S.  C.  cited  2  Ves.  &  Beames,  131  ; 
Winchelsea  v.  Garetiy,  2  Keen,  R.  293,  310  ;  Robertson  on  Succession, 
209,  214  ;  4  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  15,  ^  4,  p. 
722  to  p.  734  ;  ante,  ^  266  a,  366,  486,  487. 


898  CONFLICT    OF   LAWS.  [CH.    XIIL 

personal  estate.  In  other  words,  according  to  tlie  law 
of  Scotland,  the  real  estate,  though  subject  to  the  pay- 
ment of  movable  debts,  is  only  a  subsidary  fund  for  the 
purpose  of  payment.  Payment,  therefore,  by  the  heir, 
does  not  extinguish  the  debt  in  his  hands,  but  vests  in 
him  a  right  to  recover  the  amount  against  the  personal 
estate.^  The  question  has  arisen,  whether  under  such 
circumstances,  the  heir  is  entitled  to  enforce  a  payment 
out  of  the  personal  estate  of  his  ancestor,  not  only  in 
Scotland,  but  in  England  (where  he  died  domiciled), 
according  to  whose  laws  the  personal  estate  is  also  the 
primary  fund  for  the  payment  of  debts  ;  and  it  has  been 
held,  that  he  is  so  entitled,  upon  the  ground,  that  as 
between  the  heir  and  the  persons  entitled  to  the  distri- 
bution of  the  personal  estate,  the  primary  fund,  must  in 
all  cases  ultimately  bear  the  burden.- 


1  Earl  of  Winchelsea  v.  Garetty,  2  Keen,  R.  293,  308. 

2  Earl  of  Winchelsea  v.  Garetty,  2  Keen,  R.  293,  310,  311,  312.     See 
Lord,Langdale's  opinioa  cited  at  large,  ante,  ^  266  a. 


CH.  XIV.]  JURISDICTION   AND    REMEDIES.  899 


CHAPTER  XIV. 


JURISDICTION   AND    REMEDIES. 


§  530.  We  are  next  led  to  the  consideration  of  the 
subject  of  remedies,  or  the  modes  of  redress  for  the  vio- 
lation of  the  rights  of  other  persons  by  proceedings  in 
courts  of  justice.  And,  in  the  nature  of  things,  these 
may  well  be  classed  into  three  sorts  ;  first,  those  reme- 
dies which  purely  regard  property,  movable  and  immo- 
vable ;  secondly,  those  which  purely  regard  persons  ; 
and,  thirdly,  those  which  regard  both  persons  and  pro- 
perty. The  Roman  jurisprudence  took  notice  of  this 
distinction,  and  accordingly  divided  all  remedies,  as  to 
their  subject,  into  three  kinds  ;  (1.)  Real  actions,  other- 
wise called  Vindications,  which  were  those  in  which  a 
man  demanded  something  that  was  his  own,  and  which 
were  founded  on  dominion,  or  jus  in  re  ;  (2.)  Personal 
actions,  denominated  also  Condictions,  which  were  those 
in  which  a  man  demanded  what  was  barely  due  to  him, 
and  which  were  founded  on  some  obligation,  or  jxiB  ad 
rem;  (3.)  Mixed  actions,  which  were  those  in  which 
some  specific  thing  was  demanded,  and  where  also  some 
personal  obligations  were  claimed  to  be  performed.^ 
The  real  actions  of  the  Roman  law  w^ere  not,  like  the 


1  Halifax  on  the  Roman  Law,  B.  3,  ch.  1,  ^  4,  5,  p.  25,  86  ;  1  Brown, 
Civil  and  Adm.  Law,  p.  439,  440.  —  In  Pothier's  work  on  the  Customs  of 
Orleans,  there  will  be  found  a  correspondent  division  of  actions  into  the 
same  classes.  Pothier,  Coutumes  d'Orl^ans,  Introd.  G6n.  ch.  4,  art.  109 
to  122. 


900  CONFLICT    OF   LAWS.  fCH.  XIV. 

real  actions  of  the  common  law,  confined  to  real  estate  j 
but  they  included  personal  as  well  as  real  property. 
But  the  same  distinction,  as  to  classes  of  remedies  and 
actions,  equally  pervades  the  common  law,  as  it  does 
the  civil  law.  Thus,  we  have  in  the  common  law  the 
distinct  classes  of  real  actions,  personal  actions,  and 
mixed  actions  ;  the  first  embracing  those  which  concern 
real  estate,  where  the  proceeding  is  purely  in  rem  ;  the 
next,  embracing  all  suits  in  personam  for  contracts 
and  torts ;  and  the  last,  embracing  those  mixed  suits 
where  the  person  is  liable  by  reason  of,  and  in  connec- 
tion with,  property.^ 

§  531.  In  considering  the  nature  of  actions,  we  are 
necessarily  led  to  the  consideration  of  the  proper  tri- 
bunal in  which  they  should  be  brought ;  or,  in  other 
words,  what  tribunal  is  competent  to  entertain  them  in 
point  of  jurisdiction.  And,  here,  the  subject  naturally 
divides  itself  into  the  consideration  of  matters  of  juris- 
diction in  regard  to  the  administration  of  mere  muni- 
cipal and  domestic  justice ;  and  matters  of  jurisdiction 
in  regard  to  the  administration  of  justice  inter  gentes, 
founded  upon  principles  of  public  law. 

§  532.  In  the  Roman  jurisprudence,  and  among 
those  nations  which  have  derived  their  jurisprudence 
from  the  civil  law,  many  embarrassing  questions,  as  to 
jurisdiction,  seem  to  have  arisen."  The  general  rule  of 
the  Roman  Code  is,  that  the  plaintiff  must  bring  his 
suit  or  action  in  the  place  where  the  defendant  has  his 


1  3  Black.  Comm.  294  ;  Comyns,  Dig.  Action,  N. 

2  See  1  J.  Voet,  ad  Pand.  Lib.  5,  tit.  I,  ^  303  ;  Id.  ^  64,  66,  74,  91, 
92;  Huberus,  Lib.  5,  tit.  1,  De  Foro  Compet,  Tom.  2,  ^  38  to  ^52, 
p.  722  to  730;  Strykius,  Tom.  6,  11,  p.  1,8,  Tom.  7,  1,  p.  5  ;  1  Boul- 
lenois,  Observ.  25,  p.  601,  618,  619,  635. 


CH.  XIV.]  JURISDICTION   AND   REMEDIES.  901 

domicil,  or  where  he  had  it  at  the  time  of  the  contract. 
Juris  ordincm  (said  the  Emperor  Diocletian)  converti 
postiilas  ;  lit  non  actor  rei forum,  sed  reus  actoris  sequcdur. 
Nam  uU  domicilium  reus  hahet,  vel  tempore  contractCis 
Jialuit,  licet  lioc  postea  transiulcrit,  ihitantum  eum  conveniri 
oportct}  But  it  is  not  to  be  understood;  that  this  rule 
applied  to  all  cases  where  the  party  defendant  was 
found,  without  any  regard  to  the  situation  of  the  thing 
sought,  as  if  its  object  were  to  show  more  favor  to  the 
party  defendant  than  to  the  plaintiff.  Its  sole  object 
was,  that  the  adjudication  might  be  made  where  it  could 
be  enforced.  Thus,  we  find  the  doctrine  laid  down  in 
the  Code,  that,  although  the  general  rule  is,  that  the 
plaintiff  must  bring  his  suit  in  the  domicil  of  the  de- 
fendant ;  yet  this  was  dispensed  with  in  certain  suits 
in  rem  ;  which  might  be  brought  in  the  place  rei  sitce. 
Actor  Rei  forum,  sive  in  rem,  sive  in  personam  sit  actio, 
sequitur.  Sed  et  in  locis,  in  quihus  res,  propter  quas  con- 
tenditur,  constitidm  sunt,jubemus  in  rem  actionem  adversus 
possidentem  moveri.^ 

§  533.  Huberus  thus  explains  the  doctrine.  Cufus 
ratio  non  tam  est,  quod  reus  sit  actore  favordbilior,  etsi 
verissima ;  sed  quod  necessitatis  vocandi  et  cogendi  alium 
ad  jus  cequum,  non  nisi  a  superiore  proficisci  queat :  supe- 
rior autem  cujusque  non  est  alienus,  sed  proprius  rector. 

Vocandi,  inquam,  et  cogendi;  quandoquidem  sine  coactione 
jiidicia  forent  elusoria  ;  nee  alihi  forum  lege  stdbilitur,quam 
id)i  ilia  cogendi  facultas  adJdheri  potest ;  non  tamen,  lit  id)i- 
cunque  ilia  valet,  sit  foriim,  sed  iihi  res  et  wquitas  patitur. 

Vis  ilia  compellendi  partes  ad  wquum  jus,  imiirimis  est  in 


1  Cod.  Lib.  3,  tit.  13,  1.  2  ;  ante,  ^  526. 

2  Cod.  Lib.  3,  tit.  19,  1.  3  ;  1  BouUenois,  Observ.25,  p.  618,  619;  post, 
§  551. 

CONFL.  76 


902  CONFLICT    OF   LAWS.  [CH.  XIV. 

loco  domicilii,  est  etiam  in  loco  rei  sitce,  et  rei  gestce,  si  Reus 
illic  hciberi  2J0ssit,  alias  seciis.  Hinc  tria  sunt  loca  fori  in 
jure  nostro,  Domicilii,  Rei  sitw,  Rei  gestce}  And,  hence 
he  thinks,  that  the  rule  of  the  civil  law  rei  sitce  applies, 
not  only  to  immovables,  but  to  movables,  although 
many  jurists  confine  it  to  the  former.^  Sed  Jieic  aliam 
pothis  rationem  sequimiir  ;  quod  in  foro  stahiliendo  maxime 
consideretur,  an  in  iwomptu  sit  effectwn  dare  citationi,  in 
cogendis  partibus  ad  ohseqidum  jurisdictionis ;  qucefcmd- 
tas  ceqiie  locum  Jiahet  in  mohilihiis,  uhi  detinentur,  qiiam  in 
immohilibus,  uhi  sitce  sunt? 

§  534.  But  he  admits,  that,  as  the  forum  domicilii 
was  of  universal  operation,  actions  in  rem  might  be 
brought  in  i\\Q  forum  domicilii,  as  well  as  in  the  forum 
rd  sitce.  Videlicet,  hoc  semper  tenendum,  domicilii  forum 
esse  generate,  quod  in  cunctis  actionihus,  adeoque  etiam  in 
actionibiis  in  rem,  oUinere,  sciendum  est,  id  de  dd.  legihus 
constat^  Again  he  says ;  Summa  igitur  hcec  esto.  Do- 
miciliwn  in  omnihiis  relus  et  actionihus  prcehet  forum. 
Res  sita  prceterea  in  actionihus  in  rem  singidarihus,  non 
excluso  domicilio?  And  he  supposes  the  same  rule  to 
apply  in  modern  times  in  the  civil  law  countries.  Hcec 
ego  deforo  domicilii,  rdque  sitce  altern^  conjuncto,  morihus 
hodiernis  eodem  modo  ^^iitem  ohtinere,  quemadmodiim  Jure 


1  Huberus,  Lib.  5,  tit.  I  ;  De  Foro  Compet.  §  38,  Tom.  2,  p.  722. 
See  also  I  Boullenois,  Observ.  25,  p.  618,  619  ;  post,  ^  551. 

2  The  subject  is  a  good  deal  controverted  among  the  civilians  ;  but  the 
present  work  does  not  require  me  to  engage  in  the  task  of  discussing  the 
various  opinions  which  are  held  by  them.  The  learned  reader  will  find 
many  of  them  referred  to  in  J.  A'^oet  ad  Pandect.  Tom.  1,  Lib.  5,  §  77, 
&c.,  p.  337. 

3  Huberus,  Tom.  2,  Lib.  5,  tit.  1,  H^.  P-  727. 

4  Id.  ^  49,  p.  728. 

5  Id.  ^  50,  p.  728. 


CH.  XIV.]  JURISDICTION   AND    REMEDIES.  903 

Cwmns  prwscriptum  est ;   iit  maxime  in  rem  agatiir,  iibi 
res  sita  est ;  possit  tamen  omnino  eiiam,  uU  Reus  haUtat} 

§  535.  In  regard  to  mixed  actions,  although  there  is 
no  text  of  the  Homan  law  directly  in  point,  Huberus 
thinks,  that  they  may  be  brought,  either  in  the  place 
of  domicil  of  the  defendant,  or  of  the  rei  sitce.  De 
mixtis  actiombiiSf  exceptd  hcvreditatis  petitionee  quce  partim 
in  rcm^  partim  in  personam,  esse  diciintur,  non  sunt  textiis 
speciales,  iibi  sint  instituendce.  Ideorpie  id  ex  earum  proprie- 
tcde  colligiint  Interpretes,  cum  partim  imitentur  naturam  per- 
soncdium,  partim  in  rem  actiones,  illas  et  apud  domiciliwn  et 
apud  rem  sitam  esse  movendas,  §-<?.  Proinde  sic  est  statu- 
cndiun.  Posse  quidem  illas  actiones  idroque  loco,  domicilii, 
situsque,  moveri ;  verum,  si  faciendm  sunt  adjudicationes 
manuque  divisio  regenda  sit,  partes  ad  judicem  loci  remit- 
tendas  esse,  res  ipsa  loquitur.^ 

§  536.  The  civil  law  contemplated  another  place  of 
jurisdiction,  to  wit,  the  place  where  a  contract  was 
made,  or  was  to  be  fulfilled,  or  where  any  other  act  was 
done,  if  the  defendant  or  his  property  could  be  found 
there,  although  it  was  not  the  place  of  his  domicil. 
Illud  sciendum  est,  eiim,  qid  ita  fuit  ohligatus,  lit  in  Italia 
solver  et,  si  in  provincid  habidt  domicilium,  iitrohique  ptosse 
conveniri,  et  hie,  et  ill?  Huberus  explains  this  thus. 
Sequitur  causa  fori  tcrtia,  quam  Hem  Gestam  esse  diximus, 
eamque  vel  ex  contractu  vel  ex  delicto  admisso,  dec.  Sed 
contractus  ita  forum  trikdt,  si  contrahens  in  eodemloco  repe- 
riatur  ;  quod  convenit,  requisito  communi  inde  ah  initio  col- 
locato,  nidlam  esse  fori  causam,  nisi  cum  facultate  cogendi 


1  Huberus,  Tom.  2,  Lib.  5,  tit.  1,  ^  50. 

2  Id.  ^  51,  p.  729. 

3  Dig.  Lib.  5,  tit.  1,  1.  19,  §  4.     See  also  as  to  all  these  distinctions, 
Pothier,  Pand.  Lib.  5,  tit.  1,  n.  29  to  44  ;   Cod.  Lib.  3,  tit.  18,  1.  1. 


904  CONFLICT    OF   LAWS,  [CH.  XIV. 

conjundam ;  qiialis  non  est  ex  Jiistorid  contractus,  si  vel 
Re^is  ibi  non  inveniatur,  vel  bona  duntaxcd  sita  non  liabeat, 
in  qiice  missio  fieri  iwssit,  quando  Reus  se  in  loco  contractus 
non  sistit}  These  distinctions  of  the  Roman  law  have 
found  their  way  into  the  jurisprudence  of  most,  if  not 
all,  of  the  continental  nations  of  modern  Europe. 

§  537.  Accordingly  we  find  it  laid  down  by  foreign 
jurists  generally,  that  there  are,  properly  speaking, 
three  places  of  jurisdiction  ;  first  the  place  of  domicil  of 
the  party  defendant,  commonly  called  the  forum  domi- 
cilii; secondly,  the  place  where  the  thing  in  contro- 
versy is  situate,  commonly  called  the  forum  rei  sitcc  ; 
and  thirdly,  the  place  where  the  contract  is  made,  or 
other  acts  done,  commonly  called /onw^  rei  gestce,  or  fo- 
rum contractus.  Vis  ilia  compellandi  partes  ad  cequum 
jus  (says  Huberus)  imprimis  est  in  loco  domicilii ;  est 
etiam  in  loco  rei  sitce  ;  et  rei  gestw,  si  reus  illic  Jiaberi 
posse  ;  alias  seciis?  The  same  distinctions  are  fully 
laid  down  by  John  Voet,  in  Boullenois,  to  whom  we 
may  generally  refer  for  more  copious  information.^  They 
are  also  recognized  in  the  Scottish  law.^  They  have 
been  here  brought  into  view,  because  they  constitute 
the  basis  of  the  reasoning  of  many  of  the  foreign  jurists, 
in  discussing  the  great  doctrines  respecting  the  compe- 
tency of  tribunals  to  hold  jurisdiction  of  causes  ;  and 
the  proper  operation  of  judgments  and  decrees  {rei  Judi- 
catce.)     They  are  also  known  as  fundamental  elements 


1  Huberus,  Tom.  2,  Lib.  5,  tit.  1,  ^  53,  54,  p.  729,  730. 

2  Huberus,  Tom.  2,  Lib.  5,  tit.  1,  De  Foro  Compet.  ^  38,  p.  722. 

3  J.  Voet,  ad  Tand.  Lib.  5,  tit.  1,  De  Judiciis,  p.  303,  ^  6-1  to  ^  149  ; 
1  Boullenois,  Observ.  25,  p.  601  ;  Id.  p.  618,  619  ;  Id.  p.  635 ;  Henry  on 
Foreign  Law,  ch.  8,  p.  54,  ch.  9,  p.  63. 

4  Erskine,  Inst.  B.  1,  tit.  2,  §  16  to  22,  p.  29  to  39. 


CII. 


XIV.]  JURISDICTION   AND    REMEDIES.  905 


in  the  actual  jurisprudence  of  many  of  the  modern  na- 
tions of  continental  Europe/ 

§  538.  In  the  corresponding  distribution  of  actions 
by  the  common  law  into  personal  actions,  and  real  ac- 
tions, and  mixed  actions,^  the  two  latter  are,  in  point  of 
jurisdiction,  confined  to  the  place  rei  sitcc  ;  and  the  for- 
mer are  generally  capable  of  being  brought  wherever 
the  party  can  be  found.  Or,  as  the  judicial  phrase  is, 
in  the  common  law,  real  actions  and  mixed  actions  are 
local ;  and  personal  actions  are  transitonj} 

§  539.  Considered  in  an  international  point  of  view, 
jurisdiction,  to  be  rightfully  exercised,  must  be  founded 
either  upon  the  person  being  within  the  territory,  or 
upon  the  thing  being  within  the  territory ;  for,  otherwise, 
there  can  be  no  sovereignty  exerted  upon  the  known 
maxim :    Extra  tcrntorimn  jus  dicenti  imjnme  non  imrc- 


1  See  Code  de  Proc6dure  Civile  of  France,  B.  1,  tit.  1,  art.  1  to  4 ; 
Henry  on  Foreign  Law,  ch.  8,  p.  54,  ch.  9,  p.  G3,  ch.  10,  p.  71  ;  Tar- 
dessus.  Droit  Comm.  Tom.  5.  art.  1353  ;  1  Boullenois,  .Observ.  25,  p.  GOl, 
618,  619;  Id.  635. —In  France,  jurisdiction  would  seem  generally  to 
belong  either  to  the  place  of  domicil,  or  to  the  place  rei  sitae.  Jurisdiction 
in  the  place  of  the  contract,  or  of  the  other  act  done,  does  not  seem  to  have 
been  recognized  under  the  old  jurisprudence,  and  it  does  not  exist  in  the 
modern  Code.  Code  de  Procedure  Civile,  art.  1,  2.  "  Le  lieu  (says 
EouUenois)  ou  se  passent  les  actes,celuioules  parties  s'obligent  de  payer, 
et  leur  soumission,  ne  d6terminent  pas  la  justice  ou  elles  doivent  plaider." 
1  Boullenois,  Observ.  30,  p.  829,  830,  831,  832  ;  2  Boullenois,  p.  455,  456, 
457.  Dumoulin  says  :  "  Cajterum  ex  eo  solo,  quod  quis  promisit  solvere 
certo  loco,  licet  ibi  conveniri  possit  de  jure,  sicutsiibicontraxisset ;  tamen 
hoc  non  observatur  in  hoc  regno  ;  quia  in  hoc  regno  non  sortitur  quis  forum 
ratione  contractus,  etiam  vere  et  realiter  facti  in  loco."  Molin.  Opera, 
Comm.  in  Decii.  Tom.  3,  p.  837,  edit.  1681;  1  Boullenois,  Observ.  30, 
p.  829.     See  also  Pothier,  Traite  de  la  Procedure  Civile,  ch.  1. 

2  3  Black.  Comm.  117,  118. 

3  3  Black.  Comm.  294  ;  Comm.  Dig.  Aclion,  N.  ;  1  Chitty  on  Comm. 
and  Manuf.  p.  647,  648,  649. 

76* 


906  CONFLICT    OF    LAWS.  [CH.  XIV. 

tur}  Boullenois  puts  this  rule  among  his  general  prin- 
ciples. The  laws  of  a  sovereign  rightfully  extend  over 
persons  who  are  domiciled  within  his  territory,  and  over 
property  which  is  there  situate.^  Vattel  lays  down  the 
true  doctrine,  in  clear  terms.  "  The  sovereignty,  (says 
he,)  united  to  domain,  establishes  the  jurisdiction  of  the 
nation  in  its  territories,  or  the  country,  which  belongs 
to  it.  It  is  its  province,  or  that  of  its  sovereign,  to  ex- 
ercise justice  in  all  places  under  its  jurisdiction,  to  take 
cognizance  of  the  crimes  committed,  and  the  differences 
that  arise  in  the  country."  ^  On  the  other  hand,  no 
sovereignty  can  extend  its  process  beyond  its  own  ter- 
ritorial limits,  to  subject  either  persons  or  property 
to  its  judicial  decisions.  Every  exertion  of  authority 
of  this  sort  beyond  this  limit  is  a  mere  nullity,  and  in- 
capable of  binding  such  persons  or  property  in  any  other 
tribunals.^  This  subject,  however,  deserves  a  more  exact 
consideration. 

§  540.  In  the  first  place  let  us  consider  the  subject 
of  jurisdiction  a  little  more  particularly  in  regard  to 
persons.  These  may  be,  either  citizens  (native  or  nat- 
uralized), or  foreigners.  In  regard  to  the  former,  while 
within  the  territory  of  their  birth,  or  of  their  adopted 
allegiance,  the  jurisdiction  of  the  sovereignty  over  them 
is  complete  and  irresistible.  It  cannot  be  controlled  ; 
and  it  ought  to  be  respected  everywhere.  But  as  to 
citizens  of  a  country  domiciled  abroad,  the  extent  of 
jurisdiction,  which  may  be  lawfully  exercised  over  them 


1  Dig.  Lib.  2,  tit.  1,  1.20. 

2  I  Boullenois,  Pr.  Gen.  1,  2,  p.  2,  3. 

3  Vattel,  B.  2,  ch.  8,  ^  84. 

■*  Picquet  v.  Swan,  5  IMason,  R.  35,  42.     SeeRussel  r.  Smyth,  9  Mees. 
&  Welsh.  R.  819  ;  De  Witt  v.  Burnett,  3  Barhour,  96. 


CII.    XIV.]  JURISDICTION   AND    REMEDIES.  907 

in  personam,  is  not  so  clear  upon  acknowledged  princi- 
ples.    It  is  true,  that  nations  generally  assert  a  claim 
to  regulate  the  rights,  and  duties,  and  obligations,  and 
acts  of  their  own  citizens,  wherever  they  may  be  domi- 
ciled.    And,  so  far  as  these  rights,  duties,  obligations, 
and  acts  afterwards  come  under  the  cognizance  of  the 
tribunals  of  the  sovereign  power  of  their  own  country, 
either  for  enforcement,  or  for  protection,  or  for  remedy, 
there  may  be  no  just  ground  to  exclude  this  claim. 
But  when  such  rights,  duties,  obligations,  and  acts  come 
under  the  consideration  of  other  countries,  and  espe- 
cially of  the  foreign  country  where  such  citizens  are 
domiciled,  the  duty  of  recognizing  and  enforcing  such  a 
claim  of  sovereignty,  is  neither  clear,  nor  generally  ad- 
mitted.    The  most  that  can  be  said,  is,  that  it  may  be 
admitted  ex  comitate  gentium.     But  it  may  also  be  denied 
ex  justitid  gentium,  whenever  it  is  deemed  iujurious  to 
the  interests  of  such  foreign  nations,  or  subversive  of 
their  own  policy  or  institutions.     No  one,  for  instance, 
would  imagine,  that  a  judgment  of  the  parent  country, 
confiscating  the  property,  or  extinguishing  the  personal 
rights  or  personal  capacities  of  a*  native  subject,  on  ac- 
count of  such  a  foreign  residence,  would  be  recognized 
in  any  other  country.     And  it  would  be  as  little  ex- 
pected, as  a  matter  of  right,  that  any  other  country 
would  enforce  a  judgment  against  such  persons  in  the 
parent   country,  obtained  in  invitum,  on  account  of  a 
supposed  contumacy  in  remaining  abroad,  to  which  suit 
he  had  never  appeared,  and  of  which  he  had  received 
no  notice ;  however  the  proceedings  might  be  in  con- 
formity to  the  local  laws.     This  is  the  just  result  de- 
ducible  from  the  axioms  of  Huberus  already  quoted ; 
and,  especially,  from  the  first  and  second  of  these  axi- 


908  CONFLICT    OF   LAWS.  [CH.  XIV. 

oms.^  Whatever  authority  should  be  given  to  such 
judgments,  must  be  purely  ex  comitate,  and  not  as  mat- 
ter of  absolute  or  positive  right  on  one  side,  and  of  duty 
on  the  other. 

§  541.  In  regard  to  foreigners,  resident  in  a  country, 
although  some  jurists  deny  the  right  of  a  nation  gene- 
rally to  legislate  over  them,  it  would  seem  clear,  upon 
general  principles  of  international  law,  that  such  a  right 
does  exist ;  and  the  extent  to  which  it  should  be  exer- 
cised, is  a  matter  purely  of  municipal  arrangement  and 
policy.  Huberus  lays  down  the  doctrine  in  his  second 
axiom.  All  persons,  who  are  found  within  the  limits  of 
a  government,  whether  their  residence  is  permanent  or 
temporary,  are  to  be  deemed  subjects  thereof.^  Boulle- 
nois  says,  that  the  sovereign  has  a  right  to  make  laws 
to  bind  foreigners  in  relation  to  their  property  within 
his  domains ;  in  relation  to  contracts,  and  acts  done 
therein  ;  and,  in  relation  to  judicial  proceedings,  if  they 
implead  before  his  tribunals.^  And,  further,  that  he 
may,  of  strict  right,  make  laws  for  all  foreigners,  who 
merely  pass  through  his  domains,  although  commonly 
this  authority  is  exercised  only  as  to  matters  of  police.'' 
Vattel  asserts  the  same  general  doctrine,  and  says,  that 
foreigners  are  subject  to  the  laws  of  a  state,  while  they 
reside  in  it.^     And,  in  relation  to  disputes  which  may 


1  Ante,  ^  29. 

2  Id. ;  Huberus,  Tom.  2,  Lib.  1,  tit.  3,  ^  2,  p.  538  ;  ante,  ^  29,  note  3  ; 
Henry  on  Foreign  Law,  ch.  8,  p.  54,  cli.  9,  p.  G3,  ch.  10,  p.  71. 

3  1  Boullenois,  Pr.  G6n.  4,  5,  p.  3. 

4  Id.  5,  p.  3. 

5  Valtel,  B.  1,  ch.  19,  §  213  ;  Id.  B.  2,  ch.  8,  §  99,  101,  103.  See 
Caldwell  v.  Van  Vlissenger,  16  English  Jurist,  115;  S.  C.  9  Eng.  Rep. 
51. 


CH.  XIV.]  JURISDICTION   AND    REMEDIES.  909 

arise  between  foreigners,  or  between  a,  citizen  and  a  fo- 
reigner, he  holds,  that  they  are  to  be  determined  by  the 
judge  of  the  place,  and  according  to  the  laws  of  the 
place  of  the  defendant's  domicil.^ 

§  542.  There  are  nations,  indeed,  which  wholly  refuse 
to  take  cognizance  of  controversies  between  foreigners, 
and  remit  them  for  relief  to  their  own  domestic  tribu- 
nals, or  to  that  of  the  party  defendant ;  and,  especially, 
as  to  matters  originating  in  foreign  countries.  Thus,  in 
France,  with  few  exceptions,  the  tribunals  do  not  enter- 
tain jurisdiction  of  controversies  between  foreigners 
respecting  personal  rights  and  interests.^  But  this  is  a 
matter  of  mere  municipal  policy  and  convenience,  and 
does  not  result  from  any  principles  of  international  law. 
In  England,  and  America,  on  the  other  hand,  suits  are 
maintainable,  and  are  constantly  maintained,  between 
foreigners,  where  either  of  them  is  within  the  territory 
of  the  state  in  which  the  suit  is  brought. 

[§  542  a.  The  question  has  been  much  discussed  of 
late,  how  far  foreign  princes  may  be  made  amenable  in 
the  courts  of  another  state,  or  whether  they  are  exempt 
from  its  jurisdiction.  In  a  very  recent  case  ^  in  the 
House  of  Lords,  it  was  held,  that  a  foreign  sovereign, 
although  a  British  subject,  coming  to  England  and  there 


1  Id.  B.2,ch.  8,  ^M03. 

2  See  Pardessus,  Droit  Comm.  Tom.  5,  art.  1476  to  1478,  p.  238  ; 
Henry  on  Foreign  Law,  Appendix,  p.  214  to  216. 

3  Duke  of  Brunswick  v.  King  of  Hanover,  2  Clark  &  Fin.  N.  S.  1. 
And  see  De  Haber  v.  The  Queen  of  Portugal,  and  Wadswortli  r.  The 
Queen  of  Spain,  7  Eng.  Rep.  340.  A  foreign  sovereign,  it  seems,  has  an 
undoubted  right  to  sue,  either  at  law  or  in  equity,  in  the  courts  of  another 
state.     HuUet  v.  King  of  Spain,  1  Dow  &  Clark,  169. 


910  CONFLICT    OF   LAWS.  [CH.   XIV. 

exercising  his  rights  as  such  subject,  could  not  be  made 
responsible  in  the  English  Courts  for  acts  done  in  his 
own  country  in  virtue  of  his  authority  as  sovereign,  and 
not  as  a  British  subject ;  and  Lord  Lyndhurst  observed  : 
"  It  must  be  a  very  particular  case  indeed,  even  if  any 
such  case  could  exist,  that  would  justify  us  in  interfer- 
ing with  a  foreign  sovereign  in  our  courts."] 

§  543.  But,  although  every  nation  may  thus  right- 
fully exercise  jurisdiction  over  all  persons  within  its 
domains ;  yet,  we  are  to  understand,  that,  in  regard 
thereto,  the  doctrine  applies  only  to  suits  purely  per- 
sonal, or  to  suits  connected  with  property  within  the 
same  sovereignty.  For,  although  the  person  may  be 
within  the  territorial  jurisdiction ;  yet,  it  is  by  no  means 
true,  that,  in  virtue  thereof,  every  sort  of  suit  may  there 
be  maintainable  against  him.  A  suit  cannot,  for  in- 
stance, be  maintainable  against  him,  so  as  absolutely  to 
bind  his  property  situate  elsewhere;  and,  a  fortiori,  not 
so  as  absolutely  to  bind  his  rights  and  titles  to  immo- 
vable property  situate  elsewhere.  It  is  true,  that  some 
nations  do,  in  maintaining  suits  in  iJersonam,  attempt, 
indirectly,  by  their  judgments  and  decrees,  to  bind  pro- 
perty situate  in  other  countries  ;  but  it  is  always  with 
the  reserve,  that  it  binds  the  person  only  in  their  own 
courts  in  regard  to  such  property.  And,  certainly, 
there  can  be  no  pretence,  that  such  judgments  or  de- 
crees bind  the  property  itself,  or  the  rights  over  it, 
which  are  established  by  the  laws  of  the  place  where  it 
is  situate.  If  a  Court  of  Chancery,  in  England,  should 
compel  a  bankrupt  by  its  decree,  to  convey  his  personal 
and  real  estate,  situate  in  foreign  countries,  to  the  as- 
signees under  the  commission,  (as  it  was  at  one  time 
thought  they  might  do,  although  now  the  doctrine  is 


CH.    XIV.]  JURISDICTION   AND    REMEDIES.  911 

repudiated)  •/  yet  such  a  decree  would  not  operate  to 
transfer  the  property,  so  as  to  affect  the  rights  of  cre- 
ditors, or  the  regular  operation  of  the  laws  of  the  state 
rei  sitce.  So,  a  foreign  court  cannot,  by  its  judgment  or 
decree,  pass  the  title  to  land  situate  in  another  country  ; 
neither  can  it  bind  such  land  by  a  judgment  or  decree, 
that  in  default  of  the  defendants  in  the  suit  conveying 
it  shall  be  conveyed  by  the  deed  of  its  own  ofiScers  to 
the  plaintiffs.  Such  a  conveyance,  made  by  its  officers, 
would  be  treated  in  the  country,  where  the  land  is  situ- 
ate, as  a  mere  nullity.^ 

§  544.  The  doctrine  of  the  English  Courts  of  Chan- 
cery, on  this  head  of  jurisdiction,  seems  carried  to  an 
extent,  which  may,  perhaps,  in  some  cases,  not  find  a 
perfect  warrant  in  the  general  principles  of  international 
public  law ;  and,  therefore,  it  must  have  a  very  uncertain 
basis,  as  to  its  recognition  in  foreign  countries,  so  far  as 
it  may  be  supposed  to  be  founded  in  the  comity  of 
nations.  That  doctrine  is,  that  the  Court  of  Chancery, 
having  authority  to  act  upon  the  person,  [agere  in  j^cr- 
sonam,)  may  indirectly  act  upon  real  estate,  situate  in  a 
foreign  country,  through  the  instrumentality  of  this  au- 
thority over  the  person  ;  and  that  it  may  compel  him  to 
give  effect  to  its  decree  respecting  such  property, 
whether  it  goes  to  the  entire  disposition  of  it,  or  only  to 
affect  it  with  liens  or  burdens.'^  Lord  Hardwicke  as- 
serted the  jurisdiction  in  several  cases.*     At  a  more 


1  Ex  parte  Blades,  1  Cox,  R.  398  ;  Selkrig  v.   Davies,  2  Rose,  Bank. 
Cases,  79  ;  Id.  291  ;  S.  C.  2  Dow,  R.  231. 

2  Watts  V.  Waddle,  6  Peters,  R.  389,  400. 

3  See  1  Eq.  Abridg.  C.  p.  133  ;  Arglasse  ».  Muschamp,  1  Vern.  R.  75, 
135  ;  Kildare  v.  Eustace,  1  Vern.  75,  135,  419. 

4  See  Foster  v.  Vassal,  3  Atk.  589  ;  Penn  v.  Lord  Baltimore,  1  Yes. 
R.  444. 


912  CONFLICT    OF   LAWS.  [CH.  XIV. 

recent  period  the  Court  of  Chancery  asserted  the  juris- 
diction over  a  British  creditor,  who  had  fraudulently 
obtained  a  judgment  in  the  British  West  Indies  against 
his  debtor,  and  had  on  an  execution  sold  his  debtor's 
real  estate  there,  and  become  the  purchaser  thereof; 
and  the  Court  set  aside  the  purchase  for  the  fraud.^ 
It  is  observable,  that  in  this  last  case  all  the  parties 
were  British  subjects,  and  the  original  judgment  was 
in  a  British  Island.  The  Master  of  the  Bolls,  (Sir  R. 
P.  Arden,)  on  that  occasion  said ;  "  Upon  the  whole,  it 
comes  to  this ;  that,  by  a  proceeding  in  the  island,  an 
absentee's  estate  might  be  brought  to  sale,  and  for 
whatever  interest  he  has,  without  any  particular,  upon 
which  they  are  to  bid;  the  question  is,  whether 
any  court  will  permit  the  transaction  to  avail  to  that 
extent.  It  is  said,  this  Court  has  no  jurisdiction,  be- 
cause it  is  a  proceeding  in  the  West  Indies.  It  has 
been  argued,  very  sensibly,  that  it  is  strange  for  this 
Court  to  say,  it  is  void  by  the  laws  of  the  island,  for 
want  of  notice.  I  admit,  I  am  bound  to  say,  that,  ac- 
cording to  those  laws,  a  creditor  may  do  this.  To  that 
law  he  has  had  recourse,  and  wishes  to  avail  himself  of 
it ;  the  question  is,  whether  an  English  Court  will  per- 
mit such  an  use  to  be  made  of  the  law  of  that  island, 
or  any  other  country.  It  is  sold,  not  to  satisfy  the 
debt,  but  in  order  to  get  the  estate,  which  the  law  of 
that  country  never  could  intend,  for  a  price  much  in- 
adequate to  the  real  value ;  and  to  pay  himself  more 
than  the  debt,  for  which  the  suit  was  commenced,  and 
for  which  only  the  sale  could  be  holden.  It  was  not 
much  litigated,  that  the  Courts  of  equity  here  have  an 


1  Cranslown  v.  Johnston,  3  Ves.  Jr.  170  ;  S.  C.  5  Yes.  Jr.  276. 


CH.  XIV.]  JURISDICTION   AND    REMEDIES.  913 

equal  right  to  interfere  with  regard  to  judgments  or 
mortgages  upon  the  hinds  in  a  foreign  country,  as  upon 
lands  here.  Bills  are  often  filed  upon  mortgages  in  the 
West  Indies.  The  only  distinction  is,  that  this  Court 
cannot  act  upon  the  land  directly,  but  acts  upon  the 
conscience  of  the  person  living  here.  Archer  v.  Pres- 
ton, Lord  Arglasse  v.  Muschamp,  Lord  Kildare  v.  Eus- 
tace, (1  Eq.  Abr.  133  ;  1  Vern.  75,  135,  419.)  Those 
cases  clearly  show,  that  with  regard  to  any  contract 
made,  or  equity  between  persons  in  this  country, 
respecting  lands  in  a  foreign  country,  particularly  in 
the  British  dominions,  this  Court  will  hold  the  same 
jurisdiction,  as  if  they  were  situated  in  England.  Lord 
Hardwicke  lays  down  the  same  doctrine,  (3  Atk.  589.) 
Therefore,  without  affecting  the  jurisdiction  of  the 
Courts  there,  or  questioning  the  regularity  of  the  pro- 
ceedings, as  in  a  court  of  law,  or  saying,  that  this  sale 
would  haA^e  been  set  aside  either  in  law  or  equity  there, 
I  have  no  difficulty  in  saying,  which  is  all  I  have  to 
say,  that  this  creditor  has  availed  himself  of  the  advan- 
tage he  got  by  the  nature  of  those  laws,  to  proceed 
behind  the  back  of  the  debtor  upon  a  constructive 
notice,  which  could  not  operate  to  the  only  point  to 
which  a  constructive  notice  ought,  that  there  might 
be  actual  notice  without  wilful  defliult ;  that  he  has 
gained  an  advantage,  which  neither  the  law  of  this, 
nor  of  any  other  country  would  permit.  I  will  lay  down 
the  rule  as  broad  as  this ;  this  Court  will  not  permit 
him  to  avail  himself  of  the  law  of  any  other  country 
to  do,  what  would  be  gross  injustice."  ^ 

§  545.  To  the  extent  of  this  decision,  perhaps  there 


1  Cranstown  v.  Johnston,  3  Ves.  R.  170 ;  S.  C.  5  Ves.  276. 

CONFL.  77 


914  CONFLICT    OF    LAWS.  [CH.    XIV. 

may  not  be  any  well-founded  objection  ;  ^  and  the  same 
doctrine  has  been  repeatedly  acted  upon  by  the  equity 
courts  of  America.^  But  even  in  England,  the  Court 
of  Chancery  "will  not  act  directly  upon  lands  in  the 
plantations,  so  as  to  affect  the  title,  or  the  possession, 
or  the  rents  and  profits  thereof^  Nor  will  it  entertain 
jurisdiction  over  contracts  with  regard  to  lands  in  fo- 
reign colonies,  so  as  to  touch  the  title  there ;  or  to  pre- 
vent a  sale  thereof  by  an  injunction ;  ^  although  it  has 
been  repeatedly  held,  in  very  general  terms,  that  there 
is  no  doubt  of  the  jurisdiction  of  the  Court  of  Chancery, 
as  to  land  in  the  West  Indies,  or  in  other  foreign  places, 
if  the  persons  are  in  England.^ 

§  546.  But  it  is  not  an  uncommon  course  for  a  nation 
by  its  own  municipal  code  to  provide  for  the  institution 
of  actions  against  non-resident  citizens,  and  against 
non-resident  foreigners,  by  a  citation  viis  et  modi's,  (as  it 
is  called,)  or  by  an  attachment  of  their  property,  nomi- 
nal gDr  real,  within  the  limits  of  its  own  territorial  sove- 
reignty ;  and  to  proceed  to  judgment  against  the  party 
defendant,  whether  he  has  any  actual  notice  of  the  suit, 
or  not,  or  whether  he  ever  appears  to  the  suit,  or  not.  In 
respect  to  such  suits  in  personam,  by  a  mere  personal  ci- 
tation, viis  et  modis,  such  as  by  posting  up  such  a  cita- 
tion on  the  Royal  Exchange,  in  London,  as  is  done  in 


1  S.  P.  Jackson  v.  Petrie,  10  Ves.  164. 

2  See  Massie  v.  Watts,  6  Cranch,  148,  158  ;  Ward  v.  Amedon,  Hop- 
kins, R.  213  ;  Mead  v.  ]\Ierreit,  2  Paige,  R.  402  ;  Mitcliell  v.  Bunch,  2 
Paige,  R:  60G. 

3  Roberdeau  v  Rous,  1  Atk.  543.  See  1  Vern.  R.  75,  135,  419  ;  post, 
§551. 

4  White  V.  Hall,  12  Ves.  Jr.  321.  See  Massie  u.  Watts,  6  Cranch, 
148,  156. 

5  Jackson  v.  Petrie,  10  Ves.  165. 


CH.    XIV.]  JURISDICTION   AND    REMEDIES.  915 

the  Admiralty  in  England,  or  by  an  edictal  citation  (as 
it  is  called,)  posted  up  at  the  Key  in  Leith,  at  the  mar- 
ket cross  of  Edinburgh,  and  the  pier  and  shore  of  Leith, 
according  to  the  practice  of  Scotland,^  there  is  no  pre- 
tence to  say,  that  such  modes  of  proceeding  can  confer 
any  legitimate  jurisdiction  over  foreigners,  who  are  non- 
residents, and  do  not  appear  to  answer  the  suit,  whether 
they  have  notice  of  the  suit,  or  not.  The  effects  of  all 
such  proceedings  are  purely  local ;  and,  elsewhere,  they 
will  be  held  to  be  mere  nullities. 

§  547.  Lord  EUenborough  put  this  doctrine  with 
great  clearness  and  force,  in  a  case  before  the  Court, 
where  a  judgment  was  obtained  in  the  Island  of  To- 
bago, against  a  party,  stated  in  the  proceedings,  to  be 
"  formerly  of  the  City  of  Dunkirk,  and  now  of  the  City 
of  London,  merchant,"  and  who  was  cited  to  appear  at 
the  ensuing  court,  to  answer  the  plaintiff's  action,  by  a 
summons,  which  was  returned  served  "  by  nailing  up  a 
copy  of  the  declaration  at  the  Court  House  door,"  and  on 
which  service  judgment  was  afterwards  given  by  default 
of  the  defendant  to  appear  and  defend  it.  It  was  at- 
tempted to  maintain  the  judgment,  as.  authorized  by  the 
local  law,  in  cases  of  persons  absent  from  the  island.  Lord 
EUenborough,  in  delivering  the  judgment  of  the  Court, 
said  ;  "  By  persons  absent  from  the  island,  must  neces- 


1  Ersk.  Instit.  B.  1,  tit.  2,  ^S  17,  IS  ;  Id.  B.  4,  tit.  I,  ^  8.  — Afier  a 
decree  is  obtained  in  personam,  in  Scotland,  it  seems,  that  letters  of  horn- 
ing, as  they  are  called,  issue,  requiring  the  defendant  to  comply  with  the 
decree,  which  may  be  served  by  personal  service,  or,  if  the  party  cannot 
be  found,  by  application  at  his  place  of  domicil,  or  dwelling-house  ;  and, 
if  he  is  out  of  the  kingdom,  then  he  is  charged  by  a  copy  put  up  at  the 
market  cross  in  Edinburgh,  and  at  the  pier  and  shore  of  Leith.  Ersk. 
Inst.  B.  2,  tit.  5,  ^  55  ;  Id.  B.  4,  tit.  3,  s"*  'J-  See  Douglas  v.  Forrest,  4 
Bing.  R.  686,  690. 


916  CONFLICT    OF   LAWS.  [CH.  XIV. 

sarily  be  understood  persons,  who  have  been  present, 
and  within  the  jurisdiction,  so  as  to  have  been  subject 
to  the  process  of  the  Court;  but  it  can  never  be  applied 
to  a  person,  who,  for  aught  appears,  never  was  present 
within,  or  subject  to  the  jurisdiction.  Supposing,  how- 
ever, that  the  Act  had  said  in  terms,  that  though  a  per- 
son sued  in  the  island  had  never  been  present  within 
the  jurisdiction  ;  yet  that  it  should  bind  him,  upon  proof 
of  nailing  up  the  summons  at  the  court  door ;  how  could 
that  be  obligatory  upon  the  subjects  of  other  countries  ? 
Can  the  Island  of  Tobago  pass  a  law  to  bind  the  rights 
of  the  whole  world  ?  Would  the  world  submit  to  such 
an  assumed  jurisdiction  ?  The  law  itself,  however, 
fairly  construed,  does  not  warrant  such  an  inference  ; 
for  '  absent  from  the  island '  must  be  taken  only  to 
apply  to  persons,  who  had  been  present  there,  and 
were  subject  to  the  jurisdiction  of  the  Court  out 
of  which  the  process  issued  ;  and,  as  nothing  of  that 
sort  was  in  proof  here  to  show,  that  the  defendant 
was  subject  to  the  jurisdiction  at  the  time  of  com- 
mencing the  suit,  there  is  no  foundation  for  raising  an 
assumpsit   in   la\y  upon  the  judgment  so  obtained."  ^ 


1  Buchanan  v.  Rucker,  9  East,  R.  192,  194.  SeeCranstown  v.  Johns- 
ton, 3  Ves.  R.  170;  S,  C.  5  Ves.  276;  Cavan  v.  Stewart,  1  Starkie,  R. 
625;  Becquet  v.  McCarthy,  2  Barn.  &  Adolph.  951  ;  S.  P.  Fergusson  v. 
Mahon,  11  Adolph.  &  Ellis,  179,  182.— In  Smith  v.  Nicholls,  5  Bin^. 
New  Cases,  208,  which  was  an  action  of  trover  for  a  ship,  the  defendant, 
among  other  things,  pleaded  a  foreign  judgment  and  recovery  by  the 
plaintiff  in  the  Vice  Admiralty  Court  at  Sierra  Leone  for  the  same  sub- 
ject-matter. To  that  plea  there  was  a  replication,  that  the  defendant  was 
not  in  the  Colony  of  Sierra  Leone,  or  at  any  place  witliin  the  jurisdiction 
of  the  Vice  Admiralty  Court,  at  the  commencement  of,  or  at  any  time 
during  the  proceedings,  or  any  time  until  after  the  judgment  in  the 
Colony  of  Sierra  Leone,  and  had  no  notice  thereof,  &c.  ;  and  Lord  Chief 
Justice  Tindal  in  delivering   his   opinion,  adverting  to  this   point,  said  ; 


CH.   XIV.]  JURISDICTION   AND    REMEDIES.  917 

This  doctrine  has  been  fully  recognized  in  the  American 
courts.^ 


"  The  effect  of  the  plaintiff's  replication  is  this,  — He  shows  some  mat- 
ters, by  which  at  least  prima  facie  the  judgment  relied  on  is  a  void  judg- 
ment; for  he  says,  at  the  time  of  the  suit  being  commenced,  and  from 
that  time  down  to  the  termination  of  the  suit,  not  only  was  the  defendant 
in  that  action  absent  from  the  place,  but  that  he  had  no  person,  whatever, 
no  agent,  or  any  other  person,  on  whom  any  processor  monition  from  the 
Court  could  be  served,  or  who  could  answer  for  him.  Till  that  is  an- 
swered by  showing,  that  there  was  some  law  in  the  colony  from  which,  in 
the  situation  the  party  was,  the  judgment  would  not  be  a  void  one,  we 
must  say  the  plaintiff  is  setting  up  that,  which,  if  unanswered,  shows  it  to 
b^a  void  judgment.  In  Plummer  v.  Woodburne,  the  Court  says,  that  be- 
fore you  set  up  a  foreign  judgment  as  conclusive  in  the  nature  of  an 
estoppel  between  the  parties,  it  must  appear  on  the  record,  that  it  is  deci- 
sive and  binding  between  them  in  the  colony,  where  the  judgment  is  given. 
That  does  not  appear  here  ;  and  therefore  on  both  grounds  I  think  the  plea 
is  a  bad  plea,  as  far  as  the  foreign  judgment  is  concerned."  See  also  Plum- 
mer V.  Woodburne,  4  Barn.  &  Cressw.  625.  Lord  Brougham  in  alluding 
to  the  same  subject  in  Don  u.  Lippmann,  5  Clark  &  Finnell.  1,  20,  21, 
said  ;  "But  supposing  that  the  debt  might  have  been  sued  for  in  Fr.ince, 
then  comes  the  question,  whether  the  French  judgment  cannot  be  sued  on 
as  a  substantive  cause  of  action.  It  is,  in  fact,  tendered  as  one  of  the 
grounds  of  suit  here.  A  foreign  judgment  is  good  here  for  such  a  pur- 
pose, provided  that  it  has  not  been  obtained  by  fraud  or  collusion,  or  by  a 
practice  contrary  to  the  principles  of  all  law.  Fraser  v.  Sinclair,  (Morr. 
4543,)  which  was  affirmed  in  this  House,  showed,  that  we  regard  a  foreign 
judgment  only  as  prima  facie  evidence  of  a  debt.  Buchanan  r.  Rucker, 
(1  Camp.  03  ;  9  East,  192,)  established,  that  the  court,  before  which  a 
foreign  judgment  is  brought  by  a  proceeding  of  this  sort,  may  examine, 
whether  it  has  been  rightly  ^obtained  or  not  ;  and  the  principle  of  the  de- 
cision cannot  be  confined  to  the  case  of  a  party  not  being  within  the  juris- 
diction at  the  time  the  judgment  is  obtained.  If  he  is  a  foreigner,  and  is 
not  within  the  jurisdiction,  but  is  by  force  kept  out  of  it  before  the  action, 
and  is  not  sued  by  proper  forms,  his  case  is  even  stronger  than  that  of  the 
defendant  in  Buchanan  v.  Rucker,  and  he  must  have  the  same  principle 
applied  to  it.     The  case  of  Douglas  v.  Forrest,  (4  Bing.  680,)  shows, 

1  Teuton  v.  Garlick,  8  Johns.  R.  194  ;  Borden  v.  Fitch,  15  Johns.  R. 
121  ;  Bissell  v.  Briggs,  9  Mass.  R.  462;  Mills  v.  Duryee,  7  Cranch,  481, 
480  ;  Picquet  v.  Swan,  5  Mason,  R.  35,  43,44  ;  Buttrick  v.  Allen,  8  Mass. 
R.  473  ;  De  Witt  v.  Burnett,  3  Barbour,  96. 
77  # 


918  CONFLICT    OF    LAWS.  [CH.    XIV. 

§  548,  In  a  recent  case,  the  validity  of  a  judgment 
rendered  in  a  foreign  country  in  a  suit  against  persons 
who  were  non-residents,  and  had  no  actual  notice  of  the 
suit,  and  did  not  appear  and  answer  the  same,  came  be- 
fore the  Court  of  Common  Pleas  in  England,  upon  a 
Scottish  judgment  rendered  against  a  Scottish  absentee, 
upon  a  due  attachment  of  his  heritable  property  in  Scot- 
land, and  due  proclamation,  by  what  is  technically 
called  "horning,"  in  Scotland,  which  judgment  was  ren- 
dered against  the  defendant  by  defiiult  for  his  non- 
appearance to  answer  the  suit.  The  question  was, 
whether  the  judgment  so  rendered  was  void,  or  not.  It 
was  held,  that  the  judgment  was  valid.  This  decision 
was  founded  partly  upon  the  construction  of  the  articles 
of  union  between  Scotland  and  England,  and  partly 
upon  the  recognition  of  such  a  practice,  as  valid,  by  a 
British  Act  of  Parliament,  and  partly  upon  the  fact,  that 
the  judgment  was  against  a  Scottish  subject.^  On  that 
occasion.  Lord  Chief  Justice  Best  in  delivering  the  opi- 
nion of  the  Court  said ;  '-  A  natural  born  subject  of  any 


how  much  the  application  of  the  rule  is  affected  hy  circumstances.  In 
that  case,  which  was  an  action  in  an  English  Court  on  a  Scotch  judgment 
of  horning  against  a  Scotchman  born,  the  Court  guards  itself  against  a 
general  inference  from  the  decision.  The  Chief  Justice,  in  delivering  the 
judgment  of  the  Court,  says  ;  (4  Bing.  703,)  '  We  confine  our  judgment 
to  a  case,  where  the  party  owed  allegiance  to  the  country,  in  which  the 
judgment  was  so  given  against  him,  and  by  the  laws  of  which  country  his 
property  was,  at  the  time  those  judgments  were  given,  protected.' 
Beckett  v.  McCarthy,  (2  Barn.  &  Ad.  951,)  has  been  supposed  to  go 
to  the  verge  of  the  law  ;  but  the  defendant  in  that  case  held  a  public  office 
jn  the  very  colony  in  which  he  was  originally  sued."  In  the  still  more 
recent  case  of  Ferguson  v.  Mahon,  .3  Perr.  &  Dav.  R.  143,  the  Court  of 
King's  Bench  in  England  held,  in  an  action  on  an  Irish  judgment,  that  it 
was  a  good  plea  in  bar,  that  the  defendant  was  never  served  with,  nor  had 
notice  of  any  process  in  the  action. 

1  Douglas  V.  Forrest,  4  Bing.  R.  686,  702,  703. 


CH.  XIV.]  JURISDICTION   AND    REMEDIES.  919 

country,  quitting  that  country,  but  leaving  property 
under  the  protection  of  its  laws,  even  during  his  ab- 
sence, owes*obedience  to  those  laws,  particularly  when 
those  laws  enforce  a  moral  obligation.  The  deceased, 
before  he  left  his  native  country,  acknowledged,  under 
his  hand,  that  he  owed  the  debts  ;  he  was  under  a  moral 
obligation  to  discharge  those  debts,  as  soon  as  he 
could." '  And  after  adverting  to  the  case  of  Buchanan 
V.  Rucker,  and  some  others,  he  added ;  "  To  be  sure,  if 
attachments,  issued  against  any  persons,  who  were 
never  within  the  jurisdiction  of  the  Court  issuing  them, 
would  be  supported  and  confirmed  in  the  country  in 
which  the  person  attached  resided,  the  legislature  of 
any  country  might  authorize  their  Courts  to  decide 
on  the  rights  of  parties,  who  owed  no  allegiance  to 
the  government  of  such  country,  and  were  under  no 
obligation  to  attend  its  Courts,  or  obey  its  laws.  We 
confine  our  judgment  to  a  case,  where  the  party  owed 
allegiance  to  the  country  in  which  the  judgment  was 
so  given  against  him,  from  being  born  in  it,  and  by  the 
laws  of  which  country  his  property  was,  at  the  time 
those  judgments  were  given,  protected.  The  debts 
were  contracted  in  the  country  in  which  the  judgments 
were  given,  whilst  the  debtor  resided  in  it."  ^ 

§  548  a.  Another  case  also  occurred  at  a  later  period, 
which  presented  a  similar  question.  An  action  was 
brought  and  a  judgment  recovered  in  the  island  of 
Mauritius  against  a  party,  who  had  been  a  former  resi- 


1  Douglas  V.  Forrest,  4  Bing.  R.  686,  702,  703. 

2  Douglas  V.  Forrest,  4  Bing.  R.  686,  702,  703,  See  also  Becquet  v. 
McCarlliy,  2  Barn.  &  Adolph.  R.  951  ;  Don  v.  Lippmann,  5  Clark  &  Fin- 
nell.  1,  21  ;  Plummer  v.  Woodburne,  4  Barn.  &  Cressw.  R.  625. 


920  CONFLICT   OF   LAWS.  [CH.  XIV. 

dent  in  the  Island ;  but  who  was  absent  from  the  Island 
during  the  whole  course  of  the  proceedings.  By  a  law 
of  the  Colony  it  was  provided,  that  if  a  suit  was  insti- 
tuted against  an  absent  party,  process  should  be  served 
upon  the  King's  Procurator  General  in  the  colony ;  but 
it  was  not  expressly  provided  that  the  Procurator  Gene- 
ral should  communicate  with  the  absent  party.  It  ap- 
peared that  the  process  was  served  on  the  Procurator 
General,  but  it  did  not  appear,  that  the  absent  party 
had  any  notice  thereof  The  Court  held,  that  the  judg- 
ment was  valid.  Lord  Tenterden,  on  that  occasion,  in 
delivering  the  opinion  of  the  Court,  said;  "Another  ob- 
jection, and  not  an  unimportant  one,  was,  that  the  tes- 
tator, when  the  proceedings  were  instituted  against  him, 
was  absent  from  the  island  ;  and  it  was  urged,  that  it 
was  contrary  to  the  principles  of  natural  justice,  that 
any  one  should  be  condemned  unheard,  and  in  his  ab- 
sence. Proof,  however,  was  given,  that  by  the  law  of 
the  colony,  in  the  case  of  a  person  formerly  resident  in 
the  island,  absenting  himself,  and  not  leaving  any  attor- 
ney upon  whom  process  in  a  suit  might  be  served, 
the  Procurator  General  or  his  deputy  was  bound  to  take 
care  of  the  interests  of  such  absent  party.  It  was  said, 
that  the  law  of  the  island  did  not  provide  any  means, 
whereby  the  Procurator  General  or  his  deputy  might  be 
recj^uired  to  hold  communication  with,  or  receive  direc- 
tions from  an  absent  person.  There  may,  perhaps,  be 
some  deficiency  in  the  law  in  that  respect ;  but  as  the 
law  of  the  island  is,  that  the  process  shall  be  served 
upon  the  public  officer,  it  must  be  presumed,  that  he 
would  do  whatever  was  necessary  in  the  discharge  of 
that  public  duty ;  and  we  cannot  take  upon  ourselves 
to  say,  that  the  law  is  so  contrary  to  natural  justice,  as 


CH.    XIV.l  JURISDICTION   AND    REMEDIES.  921 

to  render  the  judgment  void  in  a  case,  where  the  pro- 
cess was  so  served."  ^ 

§  549.  A  still  more  common  course,  in  many  States 
and  nations,  is,  to  proceed  against  non-residents,  whether 
they  are  citizens,  or  Avhether  they  are  foreigners,  by  a 
seizure  or  attachment  of  their  property  situate  or  found 
within  the  territory.  Sometimes  the  seizure  or  attach- 
ment is  purely  nominal,  as,  for  example,  of  a  chip,  or  a 
cane,  or  a  hat.  In  other  cases  the  seizure  or  attach- 
ment is  hond  fide  of  real  property,  or  personal  property, 
within  the  territory,  or  of  debts  due  to  the  non-resident 
persons  in  the  hands  of  their  debtors,  who  live  within 
the  country."  In  such  cases,  for  all  the  purposes  of  the 
suit,  the  existence  of  the  property,  so  seized  or  attached 
within  the  territory,  constitutes  a  just  ground  of  pro- 
ceeding, to  enforce  the  rights  of  the  plaintiff  to  the 
extent  of  subjecting  such  property  to  execution  upon 
the  decree  or  judgment.  But  if  the  defendant  has 
never  appeared  and  contested  the  suit,  it  is  to  be 
treated  to  all  intents  and  purposes  as  a  mere  proceed- 
ing in  rem,  and  not,  as  personally  binding  on  the  party 
as  a  decree  or  judgment  in  personam;  or,  in  other 
words,  it  only  binds  the  property  seized  or  attached  in 
the  suit  to  the  extent  thereof  j  and  is  in  no  just  sense 


1  Becquet  v.  McCarthy,  2  Barn.  &  Adolph.  951,  958,  959. —  It  has 
been  justly  remarked  by  Lord  Brougham,  (in  Don  v.  Lippmann,  5  Clark 
&  Finnell.  21,)  that  that  case  '•  has  been  supposed  to  go  to  the  verge  of 
the  law  ;  but  the  defendant  in  that  case  held  a  public  office  in  the  very 
colony,  in  which  he  was  originally  sued."  Perhaps  a  stronger  doubt  of 
its  correctness  might  upon  principles  of  public  justice  have  been  pro- 
nounced. BouUenois  manifestly  deems  an  exorcise  of  jurisdiction  against 
an  absent  foreigner  to  be  unfounded  in  point  of  authority.  I  Buullcnois, 
Observ.  25,  p.  610. 

2  See  Henry  on  Foreign  Law,  ch.  8,  9,  10,  p.  51,  63,  71  ;  Douglas  v. 
Forrest,  4  Bing.  R.  686,  700,  701. 


922  CONFLICT    OF   LAWS.  [CH.   XIV. 

a  decree  or  judgment,  binding  upon  him  beyond  that 
property.  In  other  countries,  it  is  uniformly  so  treated, 
and  is  justly  considered  as  having  no  extra-territorial 
force  or  obligation.' 


1  See  Ewer  v.  Coffin,  1  Gushing-,  23  ;  Phelps  v.  Holker,  1  Dall.  261  ; 
Kilburn  v.  Woodworth,  5  Johns.  R.  37 ;  Pawling  v.  Bird's  Ex'ors, 
13  Johns.  192  ;  Bissell  v.  Briggs,  9  Mass.  R.  462  ;  Robinson  v.  Ex'ors 
of  Ward,  8  Johns.  R.  '86  ;  post,  ^  592.  But  see  Douglas  v.  Forrest, 
4  Bing.  R.  686,  702,  703  ;  Shumway  v.  Stillman,  6  Wendell,  R.  447  ; 
1  Boullenois,  Observ.  25,  p.  609,  610,  619,  620,  622,  623,624,628; 
6  Harris  &  Johns,  R.  191 ;  Taylor  v.  Phelps,  1  Gill  &  Johns.  R.  492.— 
Mr.  Chief  Justice  Parsons,  in  his  very  able  opinion  in  Bissell  v.  Briggs, 
(9  Mass.  R.  468,)  has  made  some  pointed  remarks  on  this  subject,  from 
which  the  following  extract  is  made.  "  To  illustrate  this  position,  it  may 
be  remarked,  that  a  debtor,  living  in  Massachusetts,  may  have  goods, 
effects,  or  credits,  in  New  Hampshire,  where  the  creditor  lives.  The 
creditor  there  may  lawfully  attach  these,  pursuant  to  the  laws  of  that 
State,  in  the  hands  of  the  bailiff,  factor,  trustee,  or  garnishee  of  his  debtor, 
and,  on  recovering  judgment,  those  goods,  effects,  and  credits,  may  law- 
fully be  applied  to  satisfy  the  judgment ;  and  the  bailiff,  factor,  trustee,  or 
garnishee,  if  sued  in  this  State  for  those  goods,  effects,  or  credits,  shall,  in 
our  courts,  be  protected  by  that  judgment,  the  Court  in  New  Hampshire 
having  jurisdiction  of  the  cause  for  the  purpose  of  rendering  that  judg- 
ment, and  the  bailiff,  factor,  trustee,  or  garnishee  producing  it,  not  to  ob- 
tain execution  of  it  here,  but  for  his  own  justification.  If,  however,  those 
goods,  effects,  and  credits  are  insufficient  to  satisfy  the  judgment,  and  the 
creditor  should  sue  an  action  on  that  judgment  in  this  State  to  obtain  satis- 
faction, he  must  fail  ;  because  the  defendant  was  not  personally  amenable 
to  the  jurisdiction  of  the  Court  rendering  the  judgment.  And,  if  the 
d&fendant,  after  the  service  of  the  process  of  foreign  attachment,  should 
either  in  person  have  gone  into  the  State  of  New  Hampshire,  or  consti- 
tuted an  attorney  to  defend  the  suit,  so  as  to  protect  his  goods,  effects,  or 
credits  from  the  effect  of  the  attachment,  he  would  not  thereby  have 
given  the  Court  jurisdiction  of  his  person  ;  since  this  jurisdiction  must 
result  from  the  service  of  the  foreign  attachment.  It  would  be  unreason- 
able to  oblige  any  man  living  in  one  State,  and  having  effects  in  another 
State,  to  make  himself  amenable  to  the  courts  of  the  last  State,  that  he 
might  defend  his  property  there  attached."  See  post,  ^  584,  592,  598  to 
618.  Mr.  Burge  has  made  the  following  remarks  on  the  same  subject. 
"  In  order  that  it  may  produce  the  effect  of  res  judicata  in  the  country,  in 
which  it  is  pronounced,  and  ^  fortiori  in  a  foreign  country,  the  sentence 
must  be  given  by  a  competent  tribunal.     It  must  put  a  final  termination 


CH.  XIV.]  JURISDICTION   AND   REMEDIES.  923 

§  550.  In  the  next  place,  let  us  consider  the  subject 
of  jurisdiction  in  regard  to  property.     It  will  be  unne- 


to  the  matter  in  litigation,  and  it  must  be  certain.  The  want  of  either  of 
these  requisites  is  such  a  defect  as  to  render  the  sentence  null  and  void, 
and  this  defect  is  called  a  nullity.  The  judicial  tribunal  must  be  compe- 
tent to  entertain  jurisdiction  of  the  subject-matter  of  the  suit.  If,  accord- 
ing to  the  constitution  of  the  tribunal,  the  subject-matter  of  the  sentence 
was  excluded  from  its  cognizance,  the  sentence  pronounced  by  the  indi- 
viduals composing  it  would  possess  the  weight  wliicli  belonged  to  an  arbi- 
trament made  by  those  to  whom  the  litigating  parties  had  submitted  tlieir 
differences,  but  it  would  not  possess  the  authority  of  res  judicata.  Where 
a  limited  tribunal  takes  upon  itself  to  exercise  a  jurisdiction  which  does 
not  belong  to  it,  its  decision  amounts  to  nothing,  and  does  not  create  any 
necessity  for  an  appeal.  Such  a  defect  in  the  sentence  cannot  be  cured  by 
the  appearance  of  the  party.  Another  nullity  in  the  sentence  is,  a  deci- 
sion given  upon  that,  which  was  not  demanded  or  not  contested,  or  when 
more  has  been  adjudged  than  was  demanded,  for  in  either  case  the  judge 
has  exceeded  his  jurisdiction  :  "  Ultra  id,  quod  in  judicium  deductum  est, 
potestas  judicis  nequaquam  potest  excedere."  The  party,  against  whom 
the  sentence  has  been  obtained,  must  be  subject  to  the  jurisdiction  of  that 
tribunal.  Such  a  jurisdiction  is  founded  either  in  respect  of  the  defend- 
er's domicil  in  the  territory  of  the  tribunal,  ratione  domicilii,  or  in  respect 
of  his  being  possessed  of  some  estate  or  subject  within  it,  ratione  rei  sit83, 
or  on  the  arrestment  made  by  the  decree  of  the  court  of  the  party's  mov- 
able effects,  arrestum  causa  fundandac  jurisdictionis.  A  jurisdiction 
acquired  by  the  arrest  of  the  defender's  property  was  not  known  to  the 
civil  law,  but  it  was  admitted  in  the  jurisprudence  of  Plolland,  Spain, 
France,  and  -Scotland,  in  all  personal  actions,  in  which  the  defender  is 
bound,  "ad  dandum,  faciendum,  et  prsestandum."  It  is  not  allowed  in 
order  io  compel  the  defender  to  appear  before  any  other  judicial  tribunal 
than  that  of  the  place  in  which  the  immovable  property,  the  subject  of  the 
suit,  is  situated.  By  the  law  of  Scotland  the  jurisdiction  is  founded  not 
only  on  the  defendant's  domicil,  but  on  his  personal  residence  in  a  place 
for  forty  days.  It  admits  jurisdiction  ratione  rei  sita»,  unless  it  has  for  its 
object  a  question  merely  personal,  as  of  status.  Where  a  foreigner  not 
otherwise  subject  to  the  jurisdiction  of  the  courts  of  Scotland  is  possessed 
of  movable  property,  there  the  jurisdiction  is  acquired  by  arresting  his 
goods,  and  so  fixing  them  within  the  judge's  territory,  or  by  their  being 
already  a  subject  of  competition  in  a  court  of  that  kingdom.  By  the  civil 
law  the  jurisdiction  was  acquired  in  respect  of  the  place  in  which  the  con- 
tract was  entered  into,  or  in  which  it  was  to  be  performed  ;  but  the  codes 
founded  on  the  civil  law  do  not  admit  a  jurisdiction  in  either  of  these  cases 
unless  the  defendant  is  found  in  that  place.     The  citation  of  the  defender, 


924  CONFLICT    OF   LAWS.  [CH.  XIV. 

cessary  to  discuss  the  matter  at  large,  as  to  personal 
property,  since  the  general  doctrine  is  not  controverted, 
that,  although  movables  are,  for  many  purposes,  to  he 
deemed  to  have  no  situs,  except  that  of  the  domicil  of 
the  owner ;  yet,  this  being  but  a  legal  fiction,  it  yields, 


the  vocatio  in  jus,  juris  experiendi  causa  vocatio,  is  essential  to  the  validity 
of  the  sentence,  because  otherwise  he  has  not  had  the  opportunity  of  de- 
fending hinnself  against  the  claim  of  his  adversary.  That  citation  need  not 
have  been  served  on  him  personally  ;  it  is  sufficient  if  it  be  left  at  his 
house.  When  the  tribunal  acquires  jurisdiction  either  ratione  rei  sitae,  or 
by  arrestment  in  consequence  of  the  defender  having  no  domicil  in  loco 
fori,  this  citation  is  necessarily  a  merely  formal  act.  By  the  Code  Civil, 
the  public  minister  is  specially  charged  with  the  duty  of  watching  over 
the  interests  of  those  who  are  presumed  to  be  absent,  and  he  is  to  be  heard 
upon  all  deinands  which  concern  them.  The  Code  de  Procedure  makes 
provision  for  delivering  to  certain  public  officers  copies  of  the  process, 
which  may  be  issued  against  foreigners.  The  jurisdiction  exercised  by 
the  Courts  of  England  is  in  general  founded  on  the  personal  service  of  the 
process  on  the  defendant.  Indeed,  according  to  the  ancient  law,  the 
plaintiff  could  not  proceed  in  an  action  before  the  defendant  had  actually 
appeared  in  court  to  answer  him;  and  even  if  he  pertinaciously  neglected 
or  refused  to  appear,  the  only  course  was  to  issue  continued  process,  or  to 
distrain  upon  his  goods,  in  order  thereby,  as  it  was  expected,  to  induce 
him  to  appear,  or  to  outlaw  him,  by  which  process  he  incurred  a  qualified 
forfeiture  of  his  land  and  goods,  and  all  his  civil  rights  as  a  subject  were 
suspended.  But  in  certain  cases,  after  actual  personal  service,  the  plaintiff 
was,  by  the  aid  of  certain  statutes,  permitted  to  enter  an  appearance  for 
the  defendant.  But  if  the  defendant  were  abroad,  or  avoided  the  service 
of  process,  and  had  no  goods  (the  distraining  of  which  was  considered 
nearly  equivalent  to  actual  service,  because  it  was  supposed  the  defendant 
would  hear  of  that  proceeding,)  then  the  only  course  was,  and  still  is,  to 
proceed  to  outlawry,  which,  however,  does  not  enable  the  plaintiff  to  pro- 
ceed in  his  action,  or  to  obtain  judgment  therein,  but  only  causes  a  seizure 
of  the  lands,  goods,  and  property  of  the  defendant,  as  forfeited  to  the  king 
for  the  defendant's  contumacy  and  disrespect  of  his  process.  But  the 
plaintiff  may  thereupon,  by  application  to  the  Court  of  Exchequer  or  by 
petition,  when  his  claim  exceeds  fifty  pounds,  obtain  satisfaction  of  his 
debt  by  sale  of  the  defendant's  property  seized  under  his  outlawry,  unless 
previously  the  defendant  appears  to  the  action,  and  enables  the  plaintiff  to 
try  the  merits."  See  also  Ewer  v.  Coffin,  1  Cush.  24  ;  Rangeley  v.  Web- 
ster, II  New  Hamp.  299  ;  McVicker  v.  Budy,  31  Maine,  317 ;  3  Burge, 
Comm.  on  Cor.  and  For.  Law,  Pt.  2,  ch.  24,  p.  1016,  1019. 


CH.  XIV.]  JURISDICTION   AND    REMEDIES.  925 

whenever  it  is  necessary  for  the  purpose  of  justice,  that 
the  actual  situs  of  the  thing  should  be  examined.  A 
nation,  within  whose  territory  any  personal  property  is 
actually  situate,  has  as  entire  dominion  over  it,  while 
therein,  in  point  of  sovereignty  and  jurisdiction,  as  it 
has  over  immovable  property  situate  there.  It  may 
regulate  its  transfer,  and  subject  it  to  process  and  exe- 
cution, and  provide  for  and  control  the  uses  and  dispo- 
sition of  it  to  the  same  extent,  that  it  may  exert  its 
authority  over  immovable  property.^  One  of  the 
grounds  upon  which,  as  we  have  seen,  jurisdiction  is 
assumed  over  non-residents,  is,  through  the  instrument- 
ality of  their  personal  property,  as  well  as  of  their  real 
property,  within  the  local  sovereignty.-  Hence  it  is, 
that,  whenever  personal  property  is  taken  by  arrest, 
attachment,  or  execution  within  a  state,  the  title  so 
acquired  under  the  laws  of  the  state  is  held  valid  in 
every  other  state ;  ^  and  the  same  rule  is  applied  to 
debts  due  to  non-residents,  which  are  subjected  to  the 
like  process  under  the  local  laws  of  a  state.^ 

§  551.  In  respect  to  immovable  property,  every  at- 
tempt of  any  foreign  tribunal  to  found  a  jurisdiction 
over  it,  must,  from  the  very  nature  of  the  case,  be 
utterly  nugatory,  and  its  decree  must  be  forever  inca- 
pable of  execution  m  trm.     We  have  seen,  indeed,  that 


•     1  See  ante,  ^  423  a. 

2  Ante,  519. 

^  Lord  Kenyon  expressed  his  opinion  to  the  following  effect,  in  Ogden 
u.  Folliott,  (3  T.  R.  733.)  "I  have  always  understood  it  to  be  clear, 
(said  he,)  that  all  judicial  acts,  done  in  one  country  over  the  property  of 
the  subjects  within  their  jurisdiction,  are  conclusive  on  the  property  of 
those  parties  in  any  other  country." 

4  See  Bissell  v.  Briggs,  9  Mass.  R.  462,  468,  469.     But  see  Folliott  v. 
Ogden,  1  H.  Black.  R.  123,  135  ;  S.  C.  3  T.  R.  726,  733.     See  Donn  v. 
Lippmann,  5  Clark  &  Finnell.  1,  19. 
CONFL.  78 


926  CONFLICT    OF  LAWS.  [CH.   XIV. 

by  the  Roman  law  a  suit  might  in  many  cases  be 
brought,  either  where  the  property  was  situate,  or  where 
the  party  had  his  domicil.^  This  might  well  be  done 
within  any  of  the  vast  domains,  over  which  the  Roman 
empire  extended ;  for  the  judgments  of  its  tribunals 
would  be  everywhere  respected  and  obeyed.  But 
among  the  independent  nations  of  modern  times  there 
would  be  insuperable  difficulties  in  such  a  course.  And 
hence,  even  in  countries  acknowledging  the  Roman 
law,  it  has  become  a  very  general  principle,  that  suits 
in  rem  should  be  brought,  where  the  property  is  situate  ; 
and  this  principle  is  applied  with  almost  universal  ap- 
probation in  regard  to  immovable  property.^  The  same 
rule  is  applied  to  mixed  actions,  and  to  all  suits,  which 
touch  the  realty.^ 

§  552.  Boullenois  has  treated  this  whole  subject  with 
becoming  fulness  and  accuracy.  He  has  divided  ac- 
tions into  those  which  are  purely  personal,  those 
which  are  purely  real,  and  those  which  are  mixed, 
and  partake  of  the  character  of  both,  following,  in 
these  respects,  as  he  avows,  the  division  of  Bur- 
gundus.^     The   first,   (personal   actions,)    respect    the 


1  Ante,  ^  532,  545  ;  post,  §  586,  591. 

2  The  jurisdiction  as  to  the  rights  of  real  property  is  local,  the  subject 
being  fixed  and  immovable.  Lord  Chief  Justice  De  Grey  in  Rafael  v. 
Develst,  2  Wm.  Black.  R.  1058. 

3  Henry  on  Foreign  Law,  ch.  8,  ^  3,  p.  59,  ch.  9,  ^  1,  p.  63  ;  1  Boulle- 
nois, Observ.  25,  p.  601,  &c. ;  Id.  p.  618,  619  ;  Id.  p.  635,  &.c.  ;  Id.  p. 
619. 

4  The  language  of  Burgundus  is  ;  Omnium  condemnationum  summa 
divbio,  pariter  in  tria  genera  deducitur.  Aut  enim  in  rem,  aut  in  per- 
sonam, aut  in  utramque  concipiuntur.  In  rem,  quoties  alicui  res  asseri- 
tur,  hoc  est  ejus  esse  dicitur,  vel  jure  creditoris,  aut  alio  modopossidenda 
datur.  In  personam,  si  condemnetur  ad  aliquid  dandum  aut  patiendum, 
faciendum  aut  non  faciendum,  vel,  si  personse  statum  afficiat.  la  utram- 
que si  et  res,  et  persona;  simul  in  condemnationem  veniant.  Burgundus, 
Tract.  3,  n.  1,  2,  p.  84,  85. 


CH.   XIV.]  JURISDICTION   AND    REMEDIES.  927 

quality,  state,  or  condition  of  persons,  and  pronounce 
against  them  judgments  purely  personal.  Ad  dandum, 
vel  facienduiUy  aut  non  faciendum.  The  next,  (real  ac- 
tions,) respect  things,  either  the  proprietary  right  or 
ownership,  or  the  right  of  possession,  or  the  right  or 
title  of  a  creditor,  or  some  other  right  or  title.  The  last, 
(mixed  actions,)  respect  both  persons  and  things,  either 
in  adjudging  the  property  to  one,  or  pronouncing  against 
him  a  personal  judgment  for  the  profit  of  the  other,  or 
adjudging  the  property  to  one,  and  adjudging  the  other 
to  make  restitution  of  the  profits  to  him  ;  so  that  it  is 
the  title  of  the  action  which  characterizes  the  action.^ 
Personal  actions  may  rightfully  be  brought  between 
natives  in  any  competent  tribunal  of  the  realm ;  and 
between  foreigners  also,  who  have  submitted  to  the  ju- 
risdiction, wherever  the  laws  allow  its  exercise ;  and 
between  natives  and  foreigners  in  like  manner.^  But 
in  all  these  cases  the  domicil  of  the  party  defendant  is 
commonly  supposed  to  be  within  the  jurisdiction.^  Real 
actions  ought  to  be  brought  in  the  place  rei  sitw  ;  and 
this  is  the  rule  not  only,  when  the  property  in  contro- 
versy is  situate  in  the  same  kingdom ;  but  also  when 


1  1  Boullenois,  Observ.  25,  p.  601,  602. 

2  Boullenois  makes  a  distinction  in  suits  between  natives  and  foreign- 
ers to  this  effect.  If  a  foreigner  sues  a  native,  then  the  jurisdiction  is 
well  founded  against  the  latter  in  the  place  of  his  domicil  ;  and  the  fo- 
reigner is  bound  by  the  judgment.  If  the  foreigner  is  defendant,  and  has 
submitted  to  the  jurisdiction,  then  the  same  result  follows.  If  he  has  not 
submitted,  or  has  not  appeared  to  the  suit,  then  the  judgment  is  not  obliga- 
tory. 1  Boullenois,  Observ.  25,  p.  609,  610.  He  founds  himself  in  this 
opinion  upon  the  general  rule.  Actor  sequitur  forum  rei  ;  and  he  quotes 
with  approbation  the  remark  of  J.  Gaill  ;  Quis  manens  extra  regnum  non 
tenetur  in  parlamento  respondere  super  actione  personali.     Id.  p.  612. 

3  1  Boullenois,  Observ.  25,  601,  602,  603,  606,  609,  610.  See  also  Id. 
Prin.  G6n.  31,  p.  8,  9. 


928  CONFLICT   OF  LAWS.  [CH.  XIV. 

the  parties,  being  domiciled  in  one  country,  engage  in 
a  litigation,  as  to  property  locally  situate  in  another 
country.^  If,  therefore,  a  judgment  should  be  rendered 
in  one  country  respecting  property  in  another,  it  will  be 
of  no  force  in  the  latter.  It  is  true,  that  property  within 
a  country  does  not  make  the  owner  generally  a  subject 
of  the  sovereign,  where  it  is  locally  situate ;  but  it  sub- 
jects him  to  his  jurisdiction  secundum  quid,  d  aliquo  modor 
Mixed  actions,  so  far  as  they  regard  the  realty,  are  to 
be  brought  in  the  place  rei  sitce ;  but  if  the  personal 
damages  or  claims  be  separable  in  their  nature  and 
character,  they  may  be  sued  for  as  personal  actions.^ 
There  are  many  other  jurists  who  adopt  the  like  dis- 
tinctions.'* 

§  553.  Yattel  explicitly  avows  the  same  doctrine. 
"  The  defendant's  judge,"  (that  is,  the  competent  judge,) 
says  he,  "is  the  judge  of  the  place  where  the  defend- 
ant has  his  settled  abode,  or  the  judge  of  the  place 
where  the  defendant  is  when  any  sudden  difficulty 
arises,  provided  it  does  not  relate  to  an  estate  in  land, 
or  to  a  right  annexed  to  such  an  estate.  In  such  a  case, 
as  property  of  this  kind  is  to  be  held  according  to  the 
laws  of  the  country,  where  it  is  situated,  and  as  the 
right  of  granting  it  is  vested  in  the  ruler  of  the  coun- 
try, controversies  relating  to  such  [real]  property  can 
only  be  decided  in  the  state  in  which  it  depends."  ^ 


1  1  Boullenois,  Observ.  25,  p.  618,  619,  620,  622,  623  ;  Id.  Princ.  G6n. 
35,  37^  p.  9, 

2  la.  Observ.  25,  p.  623,  624,  625. 
^  Id.  Observ.  25,  p.  635,  636. 

4  Id.  Observ.  25,  p.  601,  to  p.  651 ;  1  Hertii,  Opera,  De  Collis.  Leg.  ^  70, 
p.  132,  edit.  1737  ;  Id.  p.  215,  edit.  1716 ;  J.  Voet,  ad  Pand.  Tom.  l,Lib. 
4,  tit.  1,  ^  28,  p.  241. 

5  Vattel,  B.  2,  ch.  8,  §  103. 


CII.    XIV.]  JURISDICTION   AND    REMEDIES.  929 

§  554.  It  will  be  perceived,  that  in  many  respects 
the  doctrine  here  laid  down  coincides  with  that  of  the 
common  law.  It  has  been  already  stated,  that  by  the 
common  law  personal  actions,  being  transitory,  may  be 
brought  in  any  place  where  the  party  defendant  can  be 
found ;  ^  that  real  actions  must  be  brought  in  the  fonim 
rei  sitcc ;  and  that  mixed  actions  are  properly  referable 
to  the  same  jurisdiction.-  Among  the  latter  are  actions 
for  trespasses  and  injuries  to  real  property,  which  are 
deemed  local;  so  that  they  will  not  lie  elsewhere  than 
in  the  place  rei  dice.  This  distinction  was  recognized 
as  long  ago  as  1G65,  in  a  case,^  where  the  twelve  Judges 
certified,  that  for  torts  to  the  person  and  to  personal 
property  done  abroad,  a  remedy  lay  in  a  suit  in  per- 


1  Personal  injuries  are  of  a  transitory  nature,  et  sequunter  forum  Rei. 
Lord  Chief  Justice  De  Grey  in  Rafael  v.  Develst,  2  W.  Black.  R.  1058. 
See  Mostyn  v.  Fabrigas,  Cowper,  R.  161,  176,  177;  Robinson  v.  Bland, 
2  Burr.  R.  1074  ;  S.  C.  1  W.  Black.  259  ;  ante,  364. 

2  Ante,  ^  364;  4Cowen,  R.  527,  note.  — Lord  Mansfield  in  Mostyn  v. 
Fabrigas,  (Cowper,  R.  161,  176,)  said  :  "  There  is  a  formal  and  a  sub- 
stantial distinction  as  to  the  locality  of  trials.  I  state  them  as  different 
things.  The  substantial  distinction  is,  where  the  proceeding  is  in  rem  ; 
and  where  the  effect  of  judgment  cannot  be  had,  if  it  is  laid  in  a  wrong 
place.  That  is  the  case  of  all  ejectments,  &c.  With  regard  to  matters, 
that  arise  out  of  the  realm,  there  is  a  substantial  distinction  of  locality  too  ; 
for  there  are  some  cases,  that  arise  out  of  the  realm,  which  ought  not  to  be 
tried  anywhere  but  in  the  country  where  they  arise.  As  if  two  persons 
fight  in  France,  and  both  happening  casually  to  be  here,  one  should  bring 
an  action  of  assault  against  the  other,  it  might  be  a  doubt,  whether  such 
an  action  could  be  maintained  here  ;  because,  though  it  is  not  a  criminal 
prosecution,  it  must  be  laid  to  be  against  the  peace  of  the  king  ;  but  the 
breach  of  the  peace  is  merely  local,  though  the  trespass  against  the  person 
is  transitory."  His  Lordship  here  doubtless  alluded  to  a  case  of  a  personal 
trespass  between  foreigners  ;  for  in  a  subsequent  part  of  the  same  opinion 
he  expressly  held,  that,  as  between  subjects,  not  only  upon  contracts,  but 
for  personal  torts,  an  action  might  be  maintained  in  England  ;  and  indeed 
that  was  the  very  point  decided  in  the  case  then  in  judgment. 

3  Skinner  v.  The  East  India  Company,  cited  in  Cowper,  R.  167,  168. 


930  CONFLICT    OF   LAWS.  [CH.    XIV. 

sonam  in  England  ;  but  that  for  torts  to  real  property  or 
to  fixtures  abroad  no  suit  lay.  Lord  Mansfield  and  Lord 
Chief  Justice  Eyre  held  at  one  time  a  different  doctrine  ; 
and  allowed  suits  to  be  maintained  in  England  for  inju- 
ries done  by  pulling  down  houses  in  foreign  unsettled 
regions,  viz.  in  the  desert  coasts  of  Nova  Scotia  and 
Labrador.'  But  this  doctrine  has  been  since  overruled 
as  untenable  according  to  the  actual  jurisprudence  of 
England;^  however  maintainable  it  might  be  upon 
general  principles  of  international  law,  if  the  suit  were 
for  personal  damages  only.^  [It  has  been  determined, 
however,  in  a  late  case  in  America,  that  a  person  resid- 
ing in  Pennsylvania,  and  owning  real  estate  situated  . 
there,  might  maintain  an  action  in  the  Circuit  Court  of 
the  United  States,  in  the  State  of  New  Jersey,  against 
a  canal  corporation  chartered  by  the  latter  State,  for 
consequential  injuries  done  to  such  real  estate  by  the 
defendant's  canal,  situated  also  in  New  Jersey.*] 

§  555.  The  grounds  upon  which  the  exclusive  juris- 
diction is  maintained  over  immovable  property  are  the 
same,  upon  which  the  sole  right  to  establish,  regulate, 
and  control,  the  transfer,  descent,  and  testamentary  dis- 
position of  it  have  been  admitted  by  all  nations.     The 


1  Cited  by  Lord  Mansfield  in  Mostyn  v.  Fabrigas,  Cowper,  R.  180,  181. 

3  Doulson  V.  Matthews,  4  T.  R.  503.  And  see  Watts  v.  Kinney, 
6  Hill,  N.  Y.  R.  82. 

3  The  doctrine  of  this  last  case  was  very  fully  examined  and  afiirmed  by 
Mr.  Chief  Justice  Marshall,  in  the  case  of  Livingston  v.  Jefferson,  before 
the  Circuit  Court  of  Virginia,  in  1811,  (4  Hall's  American  Law  Journal, 
p.  78.)  It  was  an  action  quare  clausam  fregit,  brought  against  Mr.  Jef- 
ferson on  account  of  an  alleged  trespass  to  lands  (the  Batture)  in  New  Or- 
leans, by  his  order,  while  he  was  President  of  the  United  States.  The 
suit  was  dismissed  for  want  of  jurisdiction. 

'^  Rundle  v.  Delaware  and  Raritan  Canal,  Wallace,  Jr's.  R.  275.  See 
also  Holmes  v.  Barclay,  4  Louis.  Ann.  R.  63. 


CH.   XIV.]  JURISDICTION   AND   REMEDIES.  931 

inconveniences  of  an  opposite  course  would  be  iunume- 
rablCj  and  would  subject  immovable  property  to  the 
most  distressing  conflicts  arising  from  opposing  titles, 
and  compel  every  nation  to  administer  almost  all  other 
laws,  except  its  own,  in  the  ordinary  administration  of 
justice.* 

556.  Having  stated  these  general  principles  in  rela- 
tion to  jurisdiction,  (the  result  of  which  is,  that  no  nation 
can  rightfully  claim  to  exercise  it,  except  as  to  persons 
and  property  within  its  own  domains,)  we  are  next  led 
to  the  consideration  of  the  question,  in  what  manner 
suits  arising  from  foreign  causes  are  to  be  instituted, 
and  proceedings  to  be  had  until  the  final  judgment. 
Are  they  to  be  according  to  the  law  of  the  place  where 
the  parties,  or  either  of  them,  live  ?  Or  are  they  to  be 
according  to  the  modes  of  proceeding  and  forms  of  suit 
prescribed  by  the  laws  of  the  place  where  the  suits  are 
brought  ?  Fortunately,  herC;  there  is  scarcely  any 
ground  left  open  for  controversy,  either  at  the  common 
law,  or  in  the  opinions  of  foreign  jurists,  or  in  the  ac- 
tual practice  of  nations.  It  is  universally  admitted  and 
established,  that  the  forms  of  remedies,  and  the  modes 
of  proceeding,  and  the  execution  of  judgments,  are  to 
be  regulated  solely  and  exclusively  by  the  laws  of  the 
place  where  the  action  is  instituted ;  or,  as  the  civilians 
uniformly  express  it,  according  to  the  Lea:  fori? 

§  557.  The  reasons  for  this  doctrine  are  so  obvious, 
that  they  scarcely  require  any  illustration.  The  busi- 
ness of  the  administration  of  justice  by  any  nation  is,  in 


1  Ante,  ^  364,  365. 

2  See  on  this  point,  iBurge,  Contiin.  onCol.  and  For.  Law,  Pt.  l,eli.  I, 
p.  24  ;  Ferguson  v.  Fyfre,8  Clark  &  Finnell.  121  ;  General  Steam  Naviga- 
tion Co.  V.  Guillen,  11  Mees.  &  Wels.  877. 


932  CONFLICT    OF   LAWS.  [CH.  XIV. 

a  peculiar  and  emphatic  sense,  a  part  of  its  public  right 
and  duty.  Each  nation  is  at  liberty  to  adopt  such  forms 
and  such  a  course  of  proceeding  as  best  comport  with  its 
convenience  and  interests,  and  the  interests  of  its  own 
subjects,  for  whom  its  laws  are  particularly  designed. 
The  different  kinds  of  remedies,  and  the  modes  of  pro- 
ceeding, best  adapted  to  enforce  rights  and  guard 
against  wrongs  in  any  nation,  must  materially  depend 
upon  the  structure  of  its  own  jurisprudence.  What 
would  be  well  adapted  to  the  jurisprudence,  either  cus- 
tomary or  positive,  of  one  nation,  for  rights  which  it 
recognized,  or  for  duties  which  it  enforced,  or  for  wrongs 
which  it  redressed,  might  be  wholly  unfit  for  that  of 
another  nation,  either  as  having  gross  defects,  or  steer- 
ing wide  of  the  appropriate  remedial  justice.  A  nation, 
acknowledging  the  existence  of  peculiar  rights  and  pri- 
vileges, either  personal  or  real,  such  as  seignorial  rights, 
Qr  trusts  in  the  realty,  would  naturally  introduce  cor- 
respondent remedies.  While  other  nations,  in  which 
such  rights  and  privileges  and  trusts  did  not  exist, 
might  well  dispense  with  the  formalities  which  they 
might  require.  The  jurisprudence  of  one  nation  may 
be  very  refined  and  artificial,  with  a  multitude  of  intri- 
cate and  perplexed  proceedings ;  that  of  another  may 
be  rude,  uninformed,  and  harsh,  consisting  of  an  undi- 
gested mass  of  usages.  It  would  be  absolutely  imprac- 
ticable to  apply  the  process  and  modes  of  proceeding  of 
the  one  nation  to  the  other.  Besides  ;  there  would  be 
an  utter  confusion  in  all  judicial  proceedings  by  attempt- 
ing to  engraft  upon  the  remedies  of  one  country  those 
of  all  other  countries  whose  subjects  should  be  parties 
or  be  interested  therein.  No  tribunal  on  earth,  however 
learned,  could  hope,  by  any  degree  of  diligence,  to  mas- 
ter the  laws  and  processes  and  remedies  of  all  other 


CH.    XIV.]  JURISDICTION   AND    REMEDIES.  933 

nations,  and  the  qualifications  and  limitations  properly 
belonging  thereto.  A  whole  life  might  be  passed  in 
obtaining  little  more  than  a  few  unconnected  elements ; 
and  litigation  would  thus  become  immeasurably  com- 
plicated, if  not  absolutely  interminable.  All  that  any 
nation  can,  therefore,  be  justly  required  to  do,  is  to 
open  its  own  tribunals  to  foreigners,  in  the  same  man- 
ner and  to  the  same  extent,  as  they  are  open  to  its  own 
subjects ;  and  to  give  them  the  same  redress,  as  to 
rights  and  wrongs,  which  it  deems  fit  to  acknowledge 
in  its  own  municipal  code  for  natives  and  residents.^ 


Lord  Brougham,  in  delivering-  his  judgment  in  Donn  v.  Lippmann,  5 
Clark  &  Finnell.  R.  1,  13,  14,  made  some  striking  remarks  on  this  sub- 
ject. "  The  law  on  this  point  is  well  settled  in  this  country,  where  this 
distinction  is  properly  taken,  that  whatever  relates  to  the  remedy  to  be 
enforced,  must  be  determined  by  the  lex  fori,  the  law  of  the  country  to  the 
tribunals  of  which  the  appeal  is  made.  This  rule  is  clearly  laid  down  in 
the  British  Linen  Company  v.  Drummond,  (10  Barn.  &  Cres.  903);  De 
la  Vega  v.  Vianna,  (I  Barn.  &  Adol.  284,)  and  in  Huber  v.  Steiner,  (2 
Scott,  304;  1  Hodges,  206  ;  2  Bing.  N.  C.  202  ;  2  Dowl.  Prac.  Gas.  781  ; 
and  4  Moore  &  Scott,  328,)  though  the  reverse  had  previously  been 
recognized  in  Williams  v.  Jones,  (13  East,  439.)  Then,  assuming  that 
to  be  the  settled  rule,  the  only  question  in  this  case  would  be,  whether  the 
law  now  to  be  enforced  is  the  law  which  relates  to  the  contract  itself,  or 
to  the  remedy.  When  both  the  parties  reside  in  the  country,  where  the 
act  is  done,  they  look  of  course  to  the  law  of  the  country,  in  which  they 
reside.  The  contract  being  silent  as  to  the  law,  by  which  it  is  to  be  go- 
verned, nothing  is  more  likely  than  that  the  lex  loci  contractus  sliould  be 
considered  at  the  time  the  rule  ;  for  the  parlies  would  not  suppose,  that 
the  contract  might  afterwards  come  before  the  tribunals  of  a  foreign  coun- 
try. But  it  is  otherwise,  when  the  remedy  actually  comes  to  be  enforced. 
The  parties  do  not  necessarily  look  to  the  remedy,  when  they  make  the 
contract.  They  bind  themselves  to  do,  what  the  law  they  live  under 
requires;  but  as  they  bind  themselves  generally,  it  may  be  taken  as  if 
they  had  contemplated  the  possibility  of  enforcing  it  in  another  country. 
That  is  the  lowest  ground,  on  which  to  place  the  case.  The  inconveni- 
ence of  pursuing  a  different  course  is  manifest.  Not  only  the  principles 
of  the  law,  but  the  known  course  of  the  courts  renders  it  necessary,  that 
the  rules  of  precedent  should  be  adopted,  and  that  the  parties  should  take 


934  CONFLICT    OF   LAWS.  [CH.  XIV. 

§  558.  The  doctrine  of  the  common  law  is  so  fully 
established  on  this  point,  that  it  would  be  useless  to  do 
more  than  to  state  the  universal  principle,  which  it 
has  promulgated  ;  that  is  to  say,  that  in  regard  to  the 
merits  and  rights  involved  in  actions,  the  law  of  the 
place  where  they  originated,  is  to  govern ;  In  iis,  qum 
spedant  decisoria  caiisce,  et  litis  decisionem,  inspiciuntiir  sta- 
tiita  loci,  iibi  contractus  fuit  celehmtus}  But  the  forms  of 
remedies  and  the  order  of  judicial  proceedings  are  to 
be  according  to  the  law  of  the  place  where  the  action 
is  instituted,  without  any  regard  to  the  domicil  of  the 
parties,  the  origin  of  the  right,  or  the  country  of  the 
act.2 


the  law  as  they  find  it,  when  they  come  to  enforce  their  contract.  It  is 
true,  that  there  may  be  no  difficulty  in  knowing  the  law  of  the  place  of 
the  contract,  while  there  may  be  a  great  difficulty  in  knowing  that  of  the 
place  of  the  remedy.  But  that  is  no  answer  to  the  rule.  The  distinction, 
which  exists  as  to  the  principle  of  applying  the  remedy,  exists  with  even 
greater  force  as  to  the  practice  of  the  courts,  where  the  remedy  is  to  be 
enforced.  No  one  can  say,  that  because  the  contract  has  been  made 
abroad,  the  form  of  action  known  in  the  foreign  court  must  be  pursued  in 
the  courts  where  the  contract  is  to  be  enforced,  or  the  other  preliminary 
proceedings  of  those  courts  must  be  adopted,  or  that  the  rules  of  pleading, 
or  the  curial  practice  of  the  foreign  country,  must  necessarily  be  followed. 
No  one  will  assert,  that  before  the  Jury  Court  in  Scotland  the  English 
creditor  of  a  domiciled  Scotchman  would  have  the  right  to  call  for  a  trial 
of  the  case  by  a  jury  ;  or  take  the  converse,  that  a  Scotchman  might  refuse 
the  intervention  of  a  jury  here,  and  insist  on  having  the  case  tried,  as  in 
Scotland,  by  the  judge  only.  No  one  will  contend  in  terms,  that  the  fo- 
reign rules  of  evidence  should  guide  us  in  such  cases;  and  yet  it  is  not  so 
easy  to  avoid  that  principle  in  practice,  if  you  once  admit,  that  though  the 
remedy  is  to  be  enforced  in  one  country,  it  is  to  be  enforced  according  to 
the  laws  which  govern  another  country. 

1  2  Boullenois,  Observ.  46,  p.  462;  ante,  §  260;  Bank  of  United  States 
V.  Donnally,  8  Peters,  R.  361,  372;  Andrews  v.  Pond,  13  Peters,  R.  65  ; 
Wilcox  V.  Hunt,  13  Peters,  R.  378.  See  also  Bouhier,  Coutume  de  Bourg. 
ch.  18,  n.  10  ;  ante,  ^  242,  ^  260  to  ^  273. 

~  The  authorities  are  exceedingly  numerous.  Among  them  we  may  cite 
the  following.     Andrews  v.  Herriott,  4  Cowen,  R.  408  ;  and  see  Id.  528, 


en.  XIV.]  JURISDICTION   AND    REMEDIES.  935 

§  559.  Nor  are  foreign  jurists  less  pointed  in  their 
recognition   of  it.     Thus  Bartolus,  in  speaking  upon 


n.  (10),  and  authorities  there  cited  ;  2  Kent,  Comm.  Lect.  27.  p.  118,  &c. 
3d  edit.;  Robinson  v.  Bland,  2  Burr.  1084;  De  la  Vega  v.  Vianna,  1 
Barn.  &  Adolp.  R.  284  ;  Trimbey  v.  Vignier,  1  Bing.  N.  Cas.  159,  160, 
161  ;  Donn  v.  Lippmann,  5  Clark  &  Fin.  R.  1,  13,  19,  20  ;  ante,  ^  557, 
note,  Fenwick  v.  Sears,  1  Cranch,  259;  Nash  v.  Tupper,  1  Cain.  R. 
402;  Pearsall  r.  Dwight,  2  Mass.  R,  84  ;  Smith  v.  Spinola,  2  Johns.  R, 
189  ;  Van  Reimsdyk  v.  Kane,  1  Gallis.  R.  371  ;  Lodge  v.  Phelps,  1  Johns. 
Cas.  412;  Thrasher  v.  Everhart,  3  Gill.  &  Johns.  234  ;  Hyde  v.  Good-' 
now,  3  Comstock,  270;  Wood  v.  Watkinson,  17  Conn.  510;  Peck  v. 
Hozier,  14  Johns,  R.  346  ;  Ohio  Insur.  Company  v,  Edmondson,  5  Louis. 
R.  295  to  300  ;  Warren  v.  Lynch,  5  Johns.  R.  239  ;  Jones  v.  Hook's  Ad- 
ministrator, 2  Rand.  Virg.  R.  303;  Wilcox  v.  Hunt,  13  Peters,  R,  378, 
379  ;  French  v.  Hall,  9  N.  Hamp.  R.  137  ;  Bank  of  United  States  v.  Do- 
nally,  8  Peters,  R.  361,  370,371,  372,  373.  —  This  last  case  was  an  action 
brought  in  Virginia  on  a  promissory  note  made  in  Kentucky,  not  under 
seal,  but  which  by  the  law  of  Kentucky  was  deemed  a  specialty.  The 
Statute  of  Limitations  of  Virginia  was  pleaded  in  bar ;  and  one  question 
was,  whether  it  was  a  good  bar  or  not.  On  that  occasion  the  court  said  ; 
"  The  other  point,  growing  out  of  the  statute  of  limitations,  pleaded  to 
the  fourth  and  fifth  counts  (for  as  to  the  three  first  counts  it  is  conceded 
to  be  a  good  bar)  involves  questions  of  a  very  difTerent  character,  as  to  the 
operation  and  effect  of  a  conflict  of  laws  in  cases  governed  by  the  lex  loci. 
The  statute  of  limitations  of  Virginia  provides,  that  '  all  actions  of  debt, 
grounded  upon  any  lending  or  contract  without  specialty,'  shall  be  com- 
menced and  sued  within  five  years  next  after  the  cause  of  such  action  or 
suit,  and  not  after.  This  being  the  language  of  the  act,  and  confessedly 
governing  the  remedy  in  the  courts  of  Virginia,  the  bar  of  five  years  must 
apply  to  all  cases  of  contract,  which  are  without  specialty,  or  in  other 
■words,  are  not  founded  on  some  instrument  acknowledged  as  a  specialty 
by  the  law  of  that  State.  The  common  law  being  adopted  in  Virginia, 
and  the  word  '  specialty  '  being  a  term  of  art  of  that  law,  we  are  led  to  the 
consideration,  whether  the  present  note  is  deemed,  in  the  common  law,  to 
be  a  specialty.  And  certainly  it  is  not  so  deemed.  It  is  not  a  sealed  con- 
tract, nor  does  it  fall  under  any  other  description  of  instruments  or  con- 
tracts or  acts  known  in  the  common  law  as  specialties.  The  argument 
does  not  deny  this  conclusion  ;  but  it  endeavors  to  escape  from  its  force,  by 
aflirming,  that  the  note  is  a  specialty  according  to  the  laws  of  Kentucky  ; 
and  if  so,  that  this  constitutes  a  part  of  its  nature  and  obligation  :  and  it 
ought,  everywhere  else,  upon  principles  of  international  jurisprudence,  to 
be  deemed  of  the  like  validity  and  effect.     The  act  of  Kentucky  of  the 


936  CONFLICT    OF   LAWS.  [CH.    XIV. 

contracts,  says ;    Qiicvro,   quid  de   contractibiis  ?     Pone 
contr actum  celelratum  per  aliquem  forensem  in  hoc  civitate  ; 

4th  of  February,  1812,  provides,  'that  all  writings  hereafter  executed 
without  a  seal  or  seals,  stipulating  for  the  payment  of  money  or  property, 
or  for  the  performance  of  any  act,  duty,  or  duties,  shall  be  placed  upon  the 
same  footing  with  sealed  writings,  containing  the  like  stipulations,  re- 
ceiving the  same  consideration  in  all  courts  of  justice,  and  to  all  intents 
and  purposes,  having  the  same  force  and  effect,  and  upon  which  the  same 
species  of  action  may  be  founded,  as  if  sealed.'  Now,  it  is  observable, 
that  this  statute  does  not  in  terms  declare  that  such  writings  shall  be 
deemed  specialties ;  nor  does  it  say,  that  they  shall  be  deemed  sealed 
instruments.  All  that  it  affirms  is,  that  they  shall  be  put  upon  the  same 
footing  as  sealed  instruments,  and  have  the  same  consideration,  force,  effect? 
and  remedy  as  sealed  instruments.  So  that  it  is  perfectly  consistent  with  the 
whole  scope  and  object  of  the  act,  to  give  them  the  same  dignity  and  obli- 
gation as  specialties,  without  intending  to  make  them  such.  A  State  legis- 
lature may  certainly  provide,  that  the  same  remedy  shall  be  had  in  a  pro- 
missory note,  as  on  a  bond  or  sealed  instrument ;  but  it  will  not  thereby 
make  the  note  a  bond  or  sealed  instrument.  It  may  declare,  that  its  obli- 
gation and  force  shall  be  the  same,  as  if  it  were  sealed  ;  but  that  will  still 
leave  it  an  unsealed  contract.  But  whatever  may  be  the  legislation  of  a 
State,  as  to  the  obligation  or  remedy  on  contract,  its  acts  can  have  no 
binding  authority  beyond  its  own  territorial  jurisdiction.  Whatever 
authority  they  have  in  other  States,  depends  upon  principles  of  international 
comity,  and  a  sense  of  justice.  The  general  principle  adopted  by  civilized 
nations  is,  that  the  nature,  validity,  and  interpretation  of  contracts,  are  to 
be  governed  by  the  law  of  the  country  where  the  contracts  are  made,  or 
are  to  be  performed.  But  the  remedies  are  to  be  governed  by  the  laws  of 
the  country,  where  the  suit  is  brought ;  or,  as  it  is  compendiously  express- 
ed, by  the  lex  fori.  No  one  will  pretend,  that  because  an  action  of  cove- 
nant will  lie  in  Kentucky  on  an  unsealed  contract  made  in  that  State ; 
therefore,  a  like  action  will  lie  in  another  State,  where  covenant  can  be 
brought  only  on  a  contract  under  seal.  It  is  an  appropriate  part  of  the 
remedy,  which  every  State  prescribes  to  its  own  tribunals,  in  the  same 
manner  in  which  it  prescribes  the  times,  within  which  all  suits  must  be 
brought.  The  nature,  validity,  and  interpretation  of  the  contract  may  be 
admitted  to  be  the  same  in  both  States ;  but  the  mode,  by  which  the 
remedy  is  to  be  pursued,  and  the  time  within  which  it  is  to  be  brought,  may 
essentially  differ.  The  remedy,  in  Virginia,  must  be  sought  within  the 
time,  and  in  the  mode  and  according  to  the  descriptive  characters  of  the 
instrument,  known  to  the  laws  of  Virginia,  and  not  by  the  description 
and  characters  of  it  prescribed  in  another  State.  An  instrument  may  be 
negotiable  in  one  State,  which  yet  may  be  incapable  of  negotiability  by 
tlie  laws  of  another  State  ;  and  the  remedy  must  be  in  the  courts  of  the 


CH.  XIV.]  JURISDICTION   AND   REMEDIES.  937 

litigmm  ortiim  est,  et  agitatiir  Us  in  loco  originis  contrahentis. 
Oujiis  loci  stahita  dehent  servari  vel  spectari  ?  Disiingiie  ; 
Aid  loqimmw  de  stcduto,  aiit  de  consiietudine,  quce  rcspiciiint 
ipsiiis  contractus  solennitatem,  aid  litis  ordinationem,  aid  de 
his,  qiuc  imiincnt  ad  jurisdictionem  ex  ipso  contractu  eveni- 
cntis  execidionis.  Primo  casii,  i7ispicitiir  locus  contractus. 
Secundo  casii,  aid  qiiwris  de  his,  quce  pertinent  ad  litis  or- 
dincdioneni,  et  inspicitur  locus  judicii ;  cad  de  his  quce. 
pertinent  ad  ipsius  litis  dccisioncm,  et  tunc,  cad  de  his,  quce 
oriuntur  secundum  ipsius  contractds  naturam  tempore  con- 
tractus, aid  de  his,  quce  oiiuntur  ex  post  facto,  propter  neg- 
ligentiam  vcl  morcan  ;  primo  casu  inspicitur  locus  contractus, 
&c} 

§  560.  Rodenburg  asserts  the  same  distinction.  Pri- 
mum  idamur  vulgatd  doctorum  distinctione,  qua  separantur 
ea,  quce  litis  formam  concernunt  ac  ordincdioncm,  al  iis,  quw 
dccisioncm  cad  mcderiam^  Lis  ordinanda  secundum  morem 
loci,  in  cquo  ventilcdur?  Boullenois  affirms  the  same 
doctrine.  A  Vegard  (says  he)  du  pnncipe  de  decision, 
quantum  ad  litis  dccisoria,  il  se  tire,  ou  de  la  loi  du  co7itrcd,  on 
de  la  loi  dc  la  situcdion,  ou  de  la  volonte  presumee  des parties, 
lorsqiH elles  ont  contracte  ensemble  ;  en  un  mot  la  Loiseule  de  la 
jurisdiction  n^g  influe  point  comme  telle.  Diversitas  fori  non 
debet  meritum  causce  variare.   A  Vegard  desformalitesjudici- 

latter  on  such  instrument,  according  to  its  own  laws.  If  then,  it  were 
admitted,  that  the  promissory  note,  now  in  controversy,  were  a  specialty 
by  the  laws  of  Kentucky,  still  it  would  not  help  the  case,  unless  it  were 
also  a  specialty,  and  recognized  as  such  by  the  laws  of  Virginia  ;  for  the 
laws  of  the  latter  must  govern  as  to  the  limitation  of  suits  in  its  own  courts, 
and  as  to  the  interpretation  of  the  meaning  of  the  words  used  in  its  own 
statutes."     Post,  ^  567. 

•  Bartolus,  Comm.  ad  Cod.  Lib.  1,  tit.  1,  1.  1  ;  Bart.  Opcr.  Tom.  7,  p. 
4,  edit.  1602;  2  Boullenois,  Observ.  46,  p.  455,  456  ;  ante,  ^  301. 

2  Rodenburg,  De  Div.  Stat.  tit.  2,  p.  5,  n.  16  ;  2  Boullenois,  Appx.  p. 
47;  1  Boullenois,  660;  Id.  685,  818;  ante,  ^  325  c,  ^  325  d,  325  h, 
note  2. 

CONFL.  79 


938  CONFLICT    OF   LAWS.  [CH.  XIV. 

aires,  qiianiimi  ad  litis  ordinationem,  la  regie  est  de  sirivre  la 
procedure  et  les  usages  observes  dans  le  lien,  dii  Ton  plaide} 
Hertius  states  the  same  point  in  liis  compendious  way. 
Expedita  est  Doctoriim  Responsio,  Jura  jiidicii  tantwn  in 
illis  ohservanda  esse,  qiice  ad  ordinem  processus  jiidicialis 
pertinent,  etsi  lis  sit  de  bonis  immobilibiis,  in  alio  ierritorio 
sitis? 

§  561.  Strykius  states  it  in  the  following  language. 
Quotiesciinque  circa  jiidicii  ordinationem  controveHitur,  sta- 
tida  loci  judicii,  omnibus  cceteris  posthabitis,  introspiiciantiir. 
In  modo  procedendi  consuetudo  jiidicii  cdtendenda,  iibi  lis 
agitatur.  In  modo  vero  decidendi,  sen  in  ipsa  ccmsw  decisione, 
consuetudo  litigantiiim,  sen  iibi  actus  est  gestiis,  cdtendendus? 
Huberus  says ;  Adeoqiie  receptwn  est  optima  ratione,  ut  in 
ordinandis  judiciis  loci  consuetudo,  ubi  agiiur,  etsi  de  negotio 
alibi  celebrato,  spectetur^  Dumoulin  says ;  TJnde  an  in- 
strumentum  habeat  executionem,  et  quo  modo  debeat  exeqiii, 
attenditur  locus  ubi  agitur,  vel  Jit  executio.  Ratio,  quia 
fides  instrumenti  coneernit  meritum,  sed  virtus  executoria  et 
modus  execpiendi  coneernit  processiim.^  Again  he  adds  -, 
Quod  in  Ms,  quce  pertinent  ad  processum  judicii,  vel  execu- 
tionem faciendam,  vel  ad  ordinationem  judicii,  semper  sit  ob- 
servanda  consuetudo  loci,  in  quo  judicium  agitatur.^  Eme- 
rigon  says ;  Pour  tout  ce,  qui  concerne  Vordre  jiidiciare,  on 


1  1  BouUenois,  Observ.  33,  p.  535  to  546  ;  Id.  Prin.  Gen.  49,  p.  11. 

2  1  Hertii,  Opera,  De  CoUis.  Leg.  ^  4,  n.  70,  p.  152,  153,  edit.  1737  ; 
Id.  p.  215,  edit.  1716. 

3  Strykii,  Tract,  et  Disp.  Tom.  2,  p.  27  ;   De  Jure  Princ,  ext.  Territ. 
ch.  3,  n.  34  ;  ante,  ^  295, 

4  Huberus,  Tom.  2,  Lib.  1,  tit.  3,  De  Confl.  Leg.  §  7. 

5  1  BouUenois,  Observ.  23,  p.  523,  524  ;  Molin.  Oper.  Comm.  ad  Cod. 
Lib.  1,  tit.  1,  Tom.  3,  p.  554,  edit.  1681. 

6  1  BouUenois,  Observ.  23,  p.  523,  524  ;  Molin.  Opera,  Comm.  Cod. 
Lib.  G,  tit.  32,  Tom.  3,  p.  735,  edit.  1681. 


CH.   XIV.]  JURISDICTION   AND   REMEDIES.  939 

doit  suivre  Viisage  du  lieu,  oil  Hon  phide.  Pom-  ce,  qui  est 
de  la  decision  dufond,  on  doit  suivre,  en  regie  generate,  les 
lois  du  lieu,  oil  le  contrat  a  ete  passe.  Cette  distinction  est 
consignee  dans  tous  nos  livres} 

562.  We  may  conclude  this  reference  to  the  opinions 
of  foreign  jurists  by  a  citation  from  John  Yoet,  who 
states  at  once  the  rule  and  the  reason  of  it.  Quia  vero 
regionum,  civitatum,  vicoruin  varia,  imo  contraria  scspe  jura 
sunt,  ohscrvandum  est,  quantum  quidem  ad  ordinem  judicii 
formamque  aitinet,  judicem  nulUus  alteriiis  sed  siii  tantmn 
fori  leges  sequi.  Sed  in  litis  ipsius  definitione,  si  de  solcn- 
nibus  contractus,  testamenti,  vel  negotii  altcriiis  qiiwstio  sit, 
validum  pronunciare  debet  ac  solenne  negotiimi,  quoties  adlii- 
hita  invenit  solennia  loci,  in  quo  illud  gestmn  est,  licet  alice,  aut 
majores,  in  loco  judicii  ad  talem  actum  solennitates  reqidsitce 
essentr 

§  563.  There  are  many  questions,  however,  which 
may  arise,  as  to  what  are,  and  what  are  not  matters 
properly  belonging  to  the  xQmQ^y,  {Ad  litis  ordinationem,) 
and  what  are,  and  what  are  not,  matters  properly  be- 
longing to  the  merits,  {Ad  litis  decisionem.)  Many  cases 
of  this  sort  may  be  found  collected  and  discussed  by 
foreign  jurists  upon  the  peculiarities  of  their  own  juris- 
prudence. But  they  could  not  be  made  intelligible  to 
a  lawyer  under  the  common  law,  without  occupying  a 
space  in  explanations,  wholly  disproportionate  to  their 
importance  in  a  treatise,  like  the  present.^ 


1  1  Em6rigon,  Trail6  des  Assur.  ch,  4,^  8,  n.  2,  p.  122  ;  Le  Royr. 
Crowninshield,  2  Mason,  R.  163.  See  also  to  the  same  effect,  P.  Voet, 
De  Stat.  ^  10,  ch.  1,  n.  1,  6,  p.  281,  285,  286,  edit.  1715 ;  Id.  p.  339,  340, 
341,  edit.  1661. 

2  J.  Voet,  ad  Pand.  Tom.  1,  Lib.  5,  tit.  1,  ^  51,  p.  328. 

3  See  1  BouUenois,  Observ.  23,  p.  535  to  569. 


940  CONFLICT    OF   LAWS.  [CH.  XIV. 

§  564.  It  may  be  of  more  utility  to  introduce  a  few 
illustrations  of  the  doctrine,  arising  peculiarly  under 
the  common-law  modes  of  proceeding ;  first,  in  regard  to 
persons,  who  may  sue  ;  secondly,  in  regard  to  process 
and  proceedings ;  and  thirdly,  in  regard  to  certain  de- 
fences against  actions,  arising  from  matters  ex  pod 
facto,  and  founded  on  local  law,  or  customary  practice. 

§  565.  In  the  first  place,  in  regard  to  persons,  who 
may  sue.  It  may  be  laid  down  as  a  general  rule,  that 
all  foreigners,  siii  juris,  and  not  otherwise  specially 
disabled  by  the  law  of  the  place,  where  the  suit  is 
brought,  may  there  maintain  suits  to  vindicate  their 
rights  and  redress  their  wrongs.  The  same  doctrine 
applies  to  foreign  sovereigns  and  to  foreign  corpora- 
tions.^ But  questions  may  arise,  where  the  party  suing 
is  not  the  original  party  to  the  debt  or  claim ;  but 
he  takes  a  derivative  title  only  from  the  original  party, 
as  where  he  is  an  assignee  or  grantee  or  donee  of  the 
debt  or  other  claim.  We  have  already  had  occasion  to 
take  notice  of  a  peculiarity  of  the  common  law,  that 
debts  and  cJioses  in  action  are  not,  with  the  exception  of 
negotiable  promissory  notes  and  bills  of  exchange,  as- 
signable.^    Hence,  if  any  other  debt  or  chose  in  action, 


1  Foreign  corporations  may  also  be  sued  in  all  cases  where  they  have 
property  within  the  jurisdiction  ;  Libbey  v.  Hodgson,  9  N.  Hamp.  R.  394  ; 
but  quccre,  of  some  of  the  doctrines  in  the  case.  See  Danforth  v.  Penny, 
3  Met.  564;  Peckham  v.  North  Parish  in  Haverhill,  16  Pick.  R.  274 ; 
McQueen  v.  Middleton  Manuf.  Co.  16  Johns.  E.5;  Story,  Eq.  Plead. 
^  55 ;  Hullett  v.  The  King  of  Spain,  2  Bligh,  R.  N.  S.  p.  51  ;  S.  C.  1 
Dow  &  Clark,  R.  169;  S.  C.  1  Clark  &  Finnell.  R.  333;  Columbian 
Government  v.  Rothschild,  2  Sim,  R.  94 ;  South  Carolina  Bank  v.  Case,  8 
Barn.  &  Cressw.  427  ;  City  of  Berne  v.  The  Bank  of  England,  9  Ves.  347  ; 
Silver  Lake  Bank  v.  North,  4  Johns.  Ch.  R.  370  ;  Bank  of  Augusta  v. 
Earle,  13  Peters,  R.  519,  588,  589. 

2  Ante,  ^  354,  355,  §  395  to  400. 


H.    XIV.]  JURISDICTION   AND    REMEDIES.  941 

such  as  a  bond,  or  a  covenant,  or  other  contract,  is  as- 
signed, no  action  can  be  maintained  thereon  in  a 
common-law  court  by  the  assignee  in  his  own  name.' 
The  same  rule  has  been  applied  to  assignments  of  debts 
or  choses  in  action,  made  in  foreign  countries,  although 
the  assignee  might  be  entitled  to  found  an  action 
thereon  in  such  foreign  country  in  his  own  name,  in 
virtue  of  such  assignment.^  For  (it  has  been  said)  the 
inquiry,  in  whose  name  the  suit  is  to  be  brought,  be- 
longs not  so  much  to  the  right  and  merit  of  the  claim, 
as  to  the  form  of  the  remedy.  No  distinction  seems  to 
have  been  made  in  England,  as  to  the  right  to  sue,  be- 
tween the  case  of  an  assignee  by  the  private  voluntary 
act  of  the  assignor,  and  an  assignee  by  operation  of 
law  by  an  assignment  in  invitum  under  the  bankrupt 
laws.  Thus,  it  has  been  held,  that  a  Scotch  assignee  of 
a  bankrupt  could  not  maintain  a  suit  in  his  own  name 
in  England  for  a  chose  in  action  of  the  bankrupt,  which 
was  admitted  to  pass  under  the  assignment.^     In  Ame- 


1  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  777,  778  ; 
Wolff  y.  Oxholme,  6  Maule  &  Selw.  R.  99;  ante,  ^  354,  355. 

2  Woinry.  Oxholme,  6  Maule  &  Selw.  R.  99  ;  Folliott  v.  Ogden,  1  H. 
Black.  431  ;  Innes  v.  Dunlap,  8  Term  R.  595;  Jeffrey  v.  McTaggart, 
6  Maule  &  Selw.  R.  126. 

3  Jeffrey  v.  Mc.  Taggart,  6  Maule  &  Selw.  126,  and  Wolff «.  Oxholme, 
6  Maule  &  Selw.  99.  But  see  in  Smith  v.  Buchanan,  (1  East,  11,)  the 
dictum  of  Lord  Kenyon  on  the  contrary.  In  Alivon  v.  Furnival  (1 
Cromp.  Mees.  &  Rose.  277,)  two  out  of  three  syndics  of  a  French  bank- 
rupt sued  a  debtor  of  the  bankrupt  in  their  own  names  in  England  ;  and 
the  objection  was  taken,  that  they  had  no  title  to  sue.  The  Court  over- 
ruled the  objection.  Mr.  Baron  Parke  in  delivering  the  judgment  of  the 
Court,  said  ;  "  Lastly,  it  is  said,  that  though  two  may  act  and  bring  an 
action,  yet  they  must  sue  in  the  name  of  all.  Now,  the  effect  of  the  tes- 
timony of  Colin  is,  that  two  may  sue  in  France  without  a  third,  and  the 
witness  for  the  defendant  does  not  prove  the  contrary,  and  there  seems  no 
reason  why  it  should  not  be  so.    The  property  in  the  effects  of  the  bank- 

79* 


942  CONFLICT    OF   LAWS.  [CH.  XIV. 

rica,  contradictory  decisions  have  been  made  upon  the 
same  point,  some  courts  affirming,  and  others  denying, 
the  right  of  the  assignee  to  sue  in  his  own  name ;  al- 
though the  weight  of  authority  must  now  he  admitted 
to  be  against  the  right.^ 

§  566.  The  reasoning  of  these  decisions  seems 
equally  to  apply  to  the  case  of  a  foreign  assignee  by 
the  voluntary  act  of  the  party,  even  where  he  could 
sue  in  his  own  name  in  the  country  in  which  the 
assignment  was  made,  although  certainly  there  is  room 
for  a  distinction  in  such  a  case  ;  and  it  has  sometimes 
been  recognized.  Thus,  in  a  case  where  the  assignee 
of  an  Irish  judgment  brought  a  suit  in  his  own  name 
in  England,  such  a  judgment  being  assignable  in  Ire- 


rupt  does  not  appear  to  be  absolutely  transferred  to  these  syndics  in  the 
way  that  those  of  a  bankrupt  are  in  this  country  ;  but  it  should  seem,  that 
the  syndics  act  as  mandatories  or  agents  for  the  creditors  ;  the  whole 
three,  or  any  two  or  one  of  them  having  the  power  to  sue  for  and  re- 
cover the  debts  in  their  ovi'n  names.  This  is  a  peculiar  right  of  action, 
created  by  the  law  of  that  country  ;  and  we  think  it  may  by  the  comity  of 
nations  be  enforced  in  this,  as  much  as  the  right  of  foreign  assignees  or 
curators,  or  foreign  corporations,  appointed  or  created  in  a  different  way 
from  that  which  the  law  of  this  country  requires.  Dutch  West  India 
Company  v.  Moses  (1  Strange,  612,)  National  Bank  of  St.  Charles  v.  De 
Bernales  (1  R.  &  Moody,  190,)  Solomons  v.  Ross,  (1  H.  Black.  131  n.) 
We  do  not  pronounce  an  opinion,  whether  this  objection  is  available  on  the 
plea  of  nil  debet,  or  ought  to  have  been  pleaded  in  abatement,  (though 
we  were  much  struck  with  the  argument  of  the  learned  counsel  for  the 
plaintiff,)  as  we  think  it  is  not  available  at  all  upon  the  evidence  in  this 
case."     See  also  ante,  ^  419,  420. 

1  See  ante,  §  358,  359,  419,  420;  Milne  v.  Moreton,  6  Binn.  R.  374  ; 
Goodwin  v.  Jones,  3  Mass.  R.  514,  519  ;  James  v.  Boynton,  9  Mass.  R. 
357;  Orr  v.  Amory,  11  Mass.  R.  25;  Ingraham  v.  Geyer,  13  Mass.  R. 
146,  147  ;  Byme  v.  Walker,  7  Serg.  &  Rawle,  483  ;  Bird  v.  Caritat,  2 
Johns.  R.  342  ;  Bird  v.  Pierpont,  1  Johns.  R.  118  ;  Murray  v.  Murray,  5 
Johns.  Ch.  R.  60  ;  Brush  v.  Curtis,  4  Connect.  R.  312  ;  Raymonds. 
Johnson,  11  Johns.  R,.  488;  Holmes  v.  Remsen,  4  Johns.  Ch.  R.  460, 
485. 


CH.  XIV.]  JURISDICTION   AND    REMEDIES.  943 

land,  so  as  to  vest  a  title  at  law  in  the  assignee,  the 
Court  of  Common  Pleas  held,  that  'he  was  entitled  to 
recover ;  because  (as  it  should  seem)  a  legal  title  by 
the  Lex  loci  vested  in  him,  and  the  case  was  not  to  be 
governed  by  the  law  of  England,  as  the  assignment 
was  in  Ireland.^  The  distinction,  although  nice,  is  at 
the  same  time  clear ;  for  the  remedy  is  sought  upon  a 
legal  right,  vested  ex  dirccto  by  the  local  law  in  the 
assignee  against  the  judgment  debtor.  There  does  not 
seem,  therefore,  any  solid  ground  upon  principle,  why 
a  right  confessedly  legal  in  the  country  where  it  origi- 
nated, and  passing  a  direct  and  positive  fixed  title  in 
the  assignee,  should  not  have  the  same  remedy  in  every 
other  country,  which  legal  fixed  titles  in  the  party  are 
there  entitled  to.  It  is  assuming  the  very  ground  in 
controversy,  to  assert,  that  it  is  a  mere  equitable  title  \ 
for  the  local  law  has  adjudged  it  otherwise,  and  vested 
the  original  title  ex  directo  in  the  assignee.  In  the 
common  case,  where  an  executor  or  administrator  in- 
dorses negotiable  paper  in  the  country,  from  which  he 
derives  his  administrative  authority,  no  one  will  doubt 
that  the  legal  title  passes  to  the  indorsee,  and  that  he 
may  sue  thereon  in  any  other  country  in  his  own 
name ;  and  yet  such  an  indorsement,  in  another  coun- 
try, by  the  executor  or  administrator,  would  not  be 
admitted  to  have  any  such  validity  or  effect."  How- 
ever, the  doctrine  of  this  case  has  been  much  doubted ; 
and,  therefore,  it  can  scarcely  be  thought  to  be  unex- 
ceptionable in  point  of  authority.     There  are  certainly 


1  O'Callaghan  V.  Thomond,   3  Taunt.  82,  84;    ante,  ^355;  3  B urge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  777,  778. 

2  Ante,  i5»  353  a,  354,  358,  359  ;  Trimbey  v.  Vignier,  1  Bing.  N.  Cases, 
151,  159,  leo. 


944  CONFLICT    OF   LAWS.  [CH.    XIV. 

dicta  and  decisions,  which  are  pointedly  the  other  way, 
and  in  which  it  is  said,  that  the  suit  must  be  brought 
in  the  name  of  the  assignor,  if  the  Lex  fori  requires  it.^ 
§  567.  Another  illustration  may  be  taken  from  the 
forms  of  action  upon  instruments  under  seal.  Thus,  in 
Virginia  a  contract  to  pay  money  with  a  scrawl  instead 
of  a  seal,  is  treated  as  a  sealed  instrument,  so  that  debt 
lies  upon  it  in  that  State.     But  in  New  York,  where 


1  The  dictum  of  Lord  Loughborough  in  Folliott  v.  Ogden,  (1  H.  Black. 
135,)  and  that  of  Lord  Ellenborough  in  Wolff  u.  Oxholme,  (4  Maule  & 
Sehv.  92,  99,)  are  to  this  effect.  But  the  recent  case  of  Alivon  v.  Furni- 
val,  1  Cromp.  Mees.  &  Rose.  277,  296,  certainly,  as  far  as  it  goes,  up- 
holds it.  Ante,  ^  565,  note.  See  also  Robinson  v.  Campbell,  3  Wheat. 
R.  212.  The  case  of  Wolff  r.  Oxholme,  6  Maule  &  Selw.  92,  99,  may 
perhaps  be  distinguishable  in  its  circumstances,  as  well  as  in  the  reasoning 
of  the  Court.  Lord  Ellenborough's  language  in  the  last  case  was,  as  fol- 
lows. "One  of  the  points  insisted  upon  in  the  argument  for  the  defend- 
ant was,  that  this  assignment  and  the  suit  instituted  upon  it,  were  a  bar 
to  the  plaintiffs'  demand :  but  we  think  that  they  cannot  have  that  effect. 
The  assignee  could  not  sue  in  the  courts  of  this  country  in  his  own  name ; 
the  action  must  have  been  brought  here  in  the  names  of  the  original  credit- 
ors, even  if  they  had  assigned  the  debt  for  a  valuable  consideration  ;  and 
although  the  assignment  gave  the  assignee  a  right  to  sue  in  his  own  name 
in  Denmark,  yet  the  defendant  does  not  appear  to  have  been  prejudiced  by 
that  measure  even  there,  nor  has  any  material  consequence  resulted  there- 
from. And  we  consider  the  case  to  stand  now  just  as  it  would  have  done, 
if  no  assignment  had  been  made,  and  if  the  suit  in  Denmark  had  been 
brought  by  the  plaintiffs  themselves,  instead  of  being  instituted  by  their 
trustees."  See  ante,  ^  358,  359,  399,  note.  See  Trasher  v.  Everhart, 
3  Gill  &  Johns.  R.  234  ;  McRay  v.  Mattoon,  10  Pick.  R.  52  ;  Pearsall  v. 
Dwight,  2  Mass.  R.  96  ;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2, 
ch.  20,  p.  777,  778.  This  subject  is  ably  discussed  on  different  sides  in 
two  articles  in  the  American  Jurist,  namely,  in  the  number  for  January, 
1833,  (9  Vol.  42,)  and  in  the  number  for  January,  1834,  (11  Vol.  101,) 
to  which  I  gladly  refer,  as  giving  a  more  satisfactory  view  of  this  subject 
than,  with  reference  to  the  plan  of  the  present  work,  I  have  been  able  to 
give.  It  may  be  thought,  that  the  case  of  foreign  executors  and  adminis- 
trators, as  assignees  by  operation  of  law  of  the  deceased's  estate,  stands 
upon  a  similar  ground.  But  it  appears  to  me  to  proceed  on  principles 
materially  different,  applicable  to  rights,  and  not  merely  to  remedies. 
Ante,  ^  399,  note,  \  420,  512,  513. 


CH.    XIV.]  JURISDICTION   AND    REMEDIES.  945 

such  a  scrawl  is  not  treated  as  a  seal,  the  remedy  must 
be,  as  upon  an  unsealed  simple  contract.'  The  same 
doctrine  has  been  maintained  in  England  upon  an 
instrument  executed  in  Jamaica,  where  there  was  no 
seal,  but  a  mark  or  scrawl  in  the  place  where  the  seal 
is  usually  affixed.^  On  the  other  hand,  a  single  bill  is 
deemed  in  Virginia  not  to  be  a  specialty  :  in  Maryland 
it  is  otherwise.  A  rernedy  brought  in  Maryland  upon 
such  a  single  bill,  executed  in  Virginia,  cannot  be  by 
an  action  of  assumpsit,  as  upon  a  simple  contract,  but 
must  be  by  action  of  debt,  as  upon  a  specialty .s 

§  568.  In  the  next  place,  as  to  process  and  proceed- 
ings. There  is  no  controversy,  that  in  a  general  sense 
the  mode  of  process  constitutes  a  part  of  the  remedy. 
But  the  question  has  arisen,  whether,  upon  contracts 
made  in  a  foreign  country,  and  which  by  the  laws  of 
that  country  are  precluded  from  being  enforced  by  a 
personal  arrest  or  imprisonment,  the  like  exemption 
applies  in  suits  to  enforce  them  in  another  country, 
where  such  process  constitutes  a  part  of  the  remedial 
justice.  Such  a  contract  existed,  or  was  supposed  to 
exist,  in  a  case  where  a  bond  given  in  France,  and  sued 
in  England,  was  understood  to  bind  the  property,  and 
not  the  person  of  the  party  in  France.'*     On  that  occa- 


1  Warren  v.  Lynch,  5  Johns,  R.  239.  See  also  Andrews  v.  Herriot, 
4  Cowen,  508  ;  Le  Roy  v.  Beard,  8  Howard,  U.  S.  R.  4G-1,  where  the 
subject  is  examined  at  length,  and  the  authorities  are  collected.  But  see 
Meredith  v.  Hinsdale,  2  Caines,  R.  362. 

2  Adam  v.  Kerr,  1  Bos.  &  Pull.  3G0.  See  also  Bank  of  the  United 
States  V.  Donnally,  8  Peters,  R.  361  ;  ante,  §  558,  note. 

3  Trasher  i'.  Everhart,  3  Gill  &  Johns.  R.  234  ;  Bank  of  the  United 
States  V.  Donnally,  8  Peters,  R.  361  ;  ante,  '5>  558,  note. 

4  Melan  v.  Filz  James,  1  Bos.  &  Pull.  138  ;  3  Burge,  Comm.  on  Col. 
and  For.  Law,  Pt.  2,  ch.  20,  p.  766,  767,  708. 


946  CONFLICT   OF   LAWS.  [CH.  XIV. 

sion  Lord  Chief  Justice  Eyre  said ;  "  If  it  appears,  that 
this  contract  creates  no  personal  obligation,  and  that  it 
could  not  be  sued,  as  such,  by  the  laws  of  France,  (on 
the  principle  of  preventing  arrests  so  vexatious  as  to 
be  an  abuse  of  the  process  of  the  Court,)  there  seems  to 
be  a  fair  ground  on  which  the  Court  may  interpose  to 
prevent  a  proceeding  so  oppressive  as  a  personal  arrest 
in  a  foreign  country,  at  the  commencement  of  a  suit,  in 
a  case,  which,  as  far  as  one  can  judge  at  present,  author- 
izes no  proceeding  against  the  person  in  the  country 
in  which  the  transaction  passed.  If  there  could  be 
none  in  France,  in  my  opinion  there  can  be  none  here. 
I  cannot  conceive,  that  what  is  no  personal  obligation 
in  the  country  in  which  it  arises,  can  ever  be  raised 
into  a  personal  obligation  by  the  laws  of  another.  If 
it  be  a  personal  obligation  there,  it  must  be  enforced 
here  in  the  mode  pointed  out  by  the  law  of  this  coun- 
try. But  what  the  nature  of  the  obligation  is,  must  be 
determined  by  the  law  of  the  country  where  it  was 
entered  into  ;  and  then  this  country  will  apply  its  own 
law  to  enforce  it."  ^  And  accordingly  the  Court  dis- 
charged the  party  from  the  arrest. 

§  569.  There  does  not  seem  the  least  reason  to  doubt 
the  entire  correctness  of  the  doctrine  thus  laid  down. 
If  the  contract  creates  no  personal  obligation,  but  an 
obligation  in  rem  only,  it  cannot  be,  that  its  nature  can 
be  changed,  or  its  obligation  varied  by  a  mere  change 
of  domicil.  That  would  be  to  contradict  all  the  prin- 
ciples maintained  in  all  the  authorities,  that  the  validity, 
nature,  obligation,  and  interpretation  of  a  contract  are 


1  Ibid.     See  also   Ohio   Insur.  Co.    v.  Edmondson,  5  Louis.   R.  295, 
300. 


CH.  XIV.]  JURISDICTION   AND    REMEDIES.  947 

to  be  decided  by  the  Lex  loci  contractus}  A  suit  in^ycr- 
sonam m'EtBglaia.d  could  not  be  maintained, except  upon 
some  contract,  which  bound  the  person.  If  it  bound 
the  property  only,  the  proceeding  should  be  in  ran; 
and,  if  in  express  terms  the  party  bound  his  property 
only,  and  exempted  himself  from  a  personal  liability, 
no  one  would  doubt,  that  a  suit  in  personam  would  not 
be  maintainable.  The  same  principle  would  apply,  if 
the  laws  of  a  country  should  declare,  that  certain 
classes  of  contracts  should  not  bind  the  person  at  all, 
but  only  property,  or  a  particular  species  of  property. 
Such  laws  do  probably  exist  in  some  countries.  But 
it  does  not  follow,  because  a  personal  remedy  is  not 
given  by  the  laws  of  a  country,  that  therefore  there  is 
no  personal  obligation  in  a  contract.- 

§  570.  The  real  difficulty  lies,  not  in  the  principle 
itself,  but  in  its  application.  There  is  a  great  distinc- 
tion between  a  contract,  which  ex  directo  excludes  per- 
sonal liability,  and  a  contract  made  in  a  country,  which 
binds  the  party  personally,  but  where  the  laws  do  not 
enforce  the  contract  in  ijcrsonam,  but  only  in  rem.  In 
the  latter  case  the  remedy  constitutes  no  part  of  the 
contract.  The  liability  is  general,  so  far  as  the  acts  of 
the  parties  go  ;  and  the  mode  of  enforcing  is  a  mere 
matter  of  municipal  regulation.  It  is  strictly  a  part  of 
the  Lex  fori,  and  may  be  changed  from  time  to  time,  as 
the  legislature  may  choose.^  This  was  the  view  of  the 
matter  taken  by  Mr.  Justice  Heath  in  the  case  alluded 


1  Ante,  i^  263  to  ^  273  ;    3  Burge,   Coram.  Pt.  2,  ch.  20,  p.  765,  766, 
776. 

2  Talleyrand  v.  Boulanger,  3  Vcs.  Jr.  R.  446  ;  Flack  v.  Holm,  1  Jac. 
&  Walk.  405. 

3  See  Ogden  v.  Saunders,  12  Wheat.  R.  213. 


948  CONFLICT    OF    LAWS.  [CH.   XIV. 

to ;  for  he,  in  dissenting  from  the  opinion  of  the  Court, 
did  not  deny  the  principles  of  the  decision,  but  held, 
that  the  contract  was  personal.  "  We  all  agree/'  said 
he,  "that  in  construing  contracts  we  must  he  governed 
by  the  laws  of  the  country  in  which  they  are  made ; 
for  all  the  contracts  have  reference  to  such  laws.  But, 
when  we  come  to  remedies,  it  is  another  thing.  They 
must  be  pursued  by  the  means  which  the  law  points 
out,  where  the  party  resides.  The  laws  of  the  country 
where  the  contract  was  made,  can  only  have  reference 
to  the  nature  of  the  contract,  not  to  the  mode  of  enforc- 
ing it.  Whoever  comes  voluntarily  into  a  country 
subjects  himself  to  all  the  laws  of  that  country ;  and 
therein  to  all  the  remedies,  directed  by  those  laws,  on 
his  particular  engagements."  ^ 

§  571.  The  doctrine  of  this  case  has  been  sometimes 
followed  in  America.^  But  the  better  opinion  now 
established  both  in  England  and  America  is,  that  it  is 
of  no  consequence  whether  the  contract  authorizes  an 
arrest  or  imprisonment  of  the  party  in  the  countr}^ 
where  it  was  made,  if  there  is  no  exemption  of  the 
party  from  personal  liability  on  the  contract.  He  is 
still  liable  to  arrest  or  imprisonment  in  a  suit  upon  it 
in  any  foreign  country,  whose  laws  authorize  such  a 
mode  of  proceeding  as  a  part  of  the  local  remedy.^     In 


1  Melan  v.  Fitz  James,  1  Bos.  &  Pull.  142  ;  Hinkley  v.  Morean,  3  Ma- 
son, R.  88;  Titus  v.  Hobart,  5  Mason,  R.  378. 

2  Symonds  v.  Union  Insur.  Co.  4  Dall.  417. 

3  See  Imley  v.  Elfesson,  2  East,  R.  453  ;  Peck  v.  Hozier,  14  Johns.  R, 
346  ;  Robinson  v.  Bland,  2  Burr.  1089;  Hinkley  v.  Morean,  3  Mason,  R. 
88  ;  Titus  v.  Hobart,  5  Mason,  R.  378  ;  Smith  v.  Spinolla,  2  Johns.  R. 
198,  200  ;  De  la  Vega  v.  Vianna,  1  Barn.  &  Adolph.  R.  284;  3  Burge, 
Coram,  on  Col.  and  For.  Law,  Pt.  2,  ch.  20,  p.  766  to  769 ;  Atwater  v. 
Townsend,  4  Connect.  R.  47 ;  Woodbridge  v.  Wright,  3  Connect.  R. 
523,  526;  Smith  v.  Healey,  4  Connect.  R.  49. 


CH.  XIV.]  JURISDICTION   AND  REMEDIES.  949 

a  recent  case  in  England,  where  the  plaintiff  and  de- 
fendant were  both  foreigners,  and  the  debt  was  con- 
tracted in  a  country,  by  whose  laws  the  defendant 
would  not  have  been  liable  to  arrest,  an  application 
was  made  to  discharge  the  defendant  from  arrest  on 
that  account  j  but  the  Court  refused  the  application. 
Lord  Tenterden  on  that  occasion  in  delivering  the 
opinion  of  the  Court,  said;  "A  person  suing  in  this- 
country,  must  take  the  law  as  he  finds  it.  He  cannot 
by  virtue  of  any  regulation  in  his  own  country  enjoy 
greater  advantages  than  other  suitors  here.  And  he 
ought  not,  therefore,  to  be  deprived  of  any  superior 
advantage,  which  the  law  of  this  country  may  confer. 
He  is  to  have  the  same  rights  which  all  the  subjects  of 
this  kingdom  are  entitled  to."  ^  The  same  doctrine  has 
been  solemnly  promulgated  by  the  House  of  Lords  on 
a  still  more  recent  occasion.^ 

§  572.  The  like  principles  apply  to  the  form  of  judg- 
ments to  be  rendered,  and  of  executions  to  be  granted 
in  suits.  They  must  conform  to  the  Lex  fori,  although 
the  party  defendant  may,  in  his  domestic  forum,  have 
been  entitled  to  a  judgment,  exempting  his  person 
from  imprisonment,  in  virtue  of  a  discharge  under  an 
insolvent  law  existing  there,  and  of  which  he  had  there 
judicially  obtained  the  benefit.^     And  it  will  make  no 


1  De  la  Vega  v.  Vianna,  1  Barn.  &  Adolph.  R.  284.  See  also  Whit- 
temore  v.  Adams,  2  Cowen,  R.  626  ;  Willing  v.  Consequa,  I  Peters,  Cir. 
R.  317;  Courtois  v.  Carpentier,  1  Wash.  Cir.  R.  376;  Bird  v.  Caritat, 
2  Johns.  R.  345;  Wyman  v.  Southward,  10  Wheaton,  R.  1.  See  Henry 
on  Foreign  Law,  p.  81  to  86. 

2  Don  V.  Lippmann,  5  Clark  &  Finnell.  R.  1,  13,  14,  15  ;  ante,  ^  557, 
note. 

3  Hinkley  v.  Morean,  3  Mason,  R.  88  ;  Titus  v.  Hobart,  5  Mason, 
R.    378;    Atwater   v.  Townsend,    4  Connect.  R.  47;    Woodbridge  v. 

CONFL.  80 


950  CONFLICT    OF   LAWS.  [CH.  XIV. 

difference  in  such  case,  whether  the  contract  sued  on 
was  made  in  a  State  granting  such  discharge  or  not ; 
or,  whether  the  parties  were  citizens  of  that  State  or 
not.  The  effect  of  such  a  discharge  is  purely  local.  It 
is  addressed  solely  to  the  courts  of  the  State  under 
whose  authority  the  exemption  is  allowed.  But  it  has 
nothing  to  do  with  the  process,  proceedings,  or  judg- 
ments of  the  courts  of  other  States,  which  are  to  be 
governed  altogether  by  their  own  municipal  jurispru- 
dence. Wherever  a  remedy  is  sought,  it  is  to  be 
administered  according  to  the  Lex  fori ;  and  such  a 
judgment  is  to  be  given  as  the  laws  of  the  State,  where 
the  suit  is  brought,  authorize  and  allow,  and  not  such 
a  judgment  as  the  laws  of  other  States  authorize  or 
require.^ 

§  573.  The  general  doctrine  is  stated  in  ample  terms 
by  Paul  Yoet.  Quid,  si  actiones  sint  intentandce,  et  qui- 
dem  perso7iales,  an  sequemur,  statiihim  domicilii  debitoris, 
an  statidum  loci,  iibi  exigi  vel  intentari  'poterunt  ?  Respon- 
deo,  etsi  bene  mnlti  velint  tales  actiones  certo  loco  non  cir- 
cumscrili,  inspectd  tantiim  ilia  corporali  circumscriptione, 
ut  tamen  eas  velint  censeri  de  loco  ubi  agi  et  exigi  possunt.^ 
Again  he  adds ;  JSed  revertar,  wide  fueram  digressiis,  ad 
concurswn  statutonim  variantiimi  circa  judicia.  Ubi  occur- 
runt  iwnnulla  circa  solemnia  in  jiidiciis  servanda,  circa  tem- 
pora,   caidiones,  probationes,   causanim    decisiones,   execu- 


Wright,  3  Connect.  R.  523,  526  ;  Smith  v.  Healey,  4  Connect.  R.  49  ; 
3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  21,  ^  7,  p.  878,  879. 

^  Hinkley  v.  Morean,  3  Mason,  R.  88  ;  Titus  v.  Hobart,  5  Mason,  R. 
378  ;  Atwater  v.  Townsend,  4  Connect.  R.  47  ;  Smith  v.  Healy,  Id.  49; 
Woodbridge  v.  Wright,  3  Connect.  R.  523.  See  also  Suydam  v.  Broad- 
nax,  J  4  Peters,  R.  67. 

2  P.  Voet,  ad  Stat.  ^  10,  ch.  1,  n.  2,  p.  281,  edit.  1715  ;  Id.  p.  340, 
edit.  1661. 


CH.  XIV.]  JURISDICTION   AND   REMEDIES.  951 

tioneSy  et  appellatioms.  F'mgc,  enim,  alia  set'vari  solemnia, 
in  hco  domicilii  litigatoris,  alia  in  loco  contradils,  alia  in 
loco  rei  sitce,  alia  injudicii  loco.  Qucenam  spectanda  solem- 
nia ?  Rcspondco  ;  Spectanda  sunt  solemnia,  id  est,  stilus 
judicisfori  ilUus,  nbi  litigatur.  Idque  in  genere  verum  est, 
sive  loqiiamiir  dc  civihis,  sive  forensihiis :  statuta  rpiippe 
circa  solemnia  meo  sensu  mixti  erant  generis  ;  adeoque  vires 
exsermit  tam  intra  quam  extra  territorium,  tarn  in  ordine  ad 
incolas,  quam  ad  exteros} 

§  574.  The  same  doctrine  is  fully  confirmed  by  John 
Voet,  as  a  received  doctrine  of  foreign  law.  MuUis 
prwterea  in  locis  id  ohtinet,  ne  duo  ejiisdem  provincice  sen 
ierritorii  incolx  se  invicem,  aut  bona,  sistant  in  alio  territorio. 
Sic  duo  Brabantini  se  invicem  non  extra  Brahantiam  ;  duo 
Hollandi  non  extra  Holhndum,  S^c.  Quod  si  qids,  neglectd 
statuti  dispositione,  concivem  aut  hona  ejus  alihi  stiterit,  litis 
movendx  gratia,  non  peccabunt  quidem  istius  loci  judices,  si 
arrestum  confirment ;  cum  non  ligentur  alieni  territorii  legi- 
bus,  talem  arrestationem  concivium  vetantibus.  JSed,  qui  ita 
detentus  litigare  coactus  est,  recte  petet  a  suo  judice,  con- 
demnari  concivem,  id  arresti  vinculum,  contra  statuti  domi- 
cilii prohibitionem  alibi  impositum,  remittal,  litique  alibi 
cceptoi  cum  imp&i'isis  renunciet,  ac  solvat  midctam  statuto 
dictatam?  And  he  proceeds  to  add,  that  in  some  places 
the  practice  is  in  suits  between  two  foreigners,  belong- 
ing to  one  and  the  same  country,  to  remit  the  parties 
to  their  domestic  forum  ;  which,  however,  is  done,  not 
as  a  matter  of  right  or  duty,  but  of  comity,  or  from 
policy,  to  prevent  injurious  delays  to  the  suits  of  their 


'  P.  Voet,  de  Statut.  %  10,  ch.  1,  n.  6,  p.  285,  edit.  1715  ;  Id.  p.  345, 
346,  edit.  1661. 

-  J.  Voet,  ad  Pand.  Lib.  2,  tit.  4,  ^  45,  p.  129;  cited  also  I  Barn.  & 
Adolp.  R.  288,  note;  ante,  ^  562. 


952  CONFLICT    OF   LAWS.  [CH.    XIV. 

own  citizens.  Quod  tamen  vel  ex  comitate  magis,  quam  ne- 
cessitate fit,  vel  magis  ad  decUnandam  nimiam  litium  fre- 
quentiam  judicihiis  molestam,  civihiis,  inde  siiaram  litium 
p7'otelationem  patientihiis,  damnosam} 

§  574  a.  Dumoulin  also  affirms  a  similar  doctrine  in 
tlie  passages  already  cited.  TJnde,  an  instrumentiim  ha- 
heat  executionem,  et  qiiomodo  debeat  exequi,  aitendiiiir  locus, 
ubi  agitiir,  vel  fit  execiitio.  Ratio,  qida  fides  instnimenti 
concernet  meritimi ;  sed  virtus  executoria  et  modus  excquendi 
concetmit  processum.^  Quod  in  his,  quce  pertinent  ad  pro- 
cesswn  judicii,  vel  executionem  faciendam,  vel  ad  ordina- 
tionem  judicii,  semper  sit  ohservanda  consuetude  loci,  in  quo 
judicium  agitatur.^  Burgundus  is  equally  expressive. 
Eodem  modo  dicemus,  in  contexanda  actione,  fori  consuetil- 
dines  ohservandas  esse,  ubi  contenditur,  quia  et  in  judiciis 
quasi  contrahitur.  Idem  in  arrestis  sen  manuum  injectionibus 
tenendum  est,  id  scilicet  consuetudinem  loci  spectemus,  ubi 
facta  est  manus  injectio  ;  quia  arrestatio  apud  nos  ingressus 
est  judicii,  et  duntaxat  litis  pendentiam,  non  executionem 
generet.^  This  indeed  seems,  with  few  exceptions,  to  be 
the  general  doctrine  maintained  by  foreign  jurists ;  and 
Boullenois  has  collected  their  opinions  at  large.^  He 
treats  the  question  of  imprisonment  as  purely  one  modus 
exeqiiendi;  and  he  applies  the  same  principle  to  mesne 


1  Ibid. 

2  Molin.  Opera,  Tom.  3,  Comm.  ad  Cod.  Lib.  1,  tit.  1,  1.  1,  p.  554,  edit. 
1681  ;  ante,  §i  561. 

3  Id.  Lib.  6,  lit.  32,  p.  735,  [741,]  edit.  1681  ;  1  Boullenois,  Observ.  23, 
p.  523,  524  ;  ante,  ^561. 

4  Burgundus,  Tract.  5,  n.  1,  p.  118,  119;  1  Boullenois,  Observ.  23,  p. 
524,  526  ;  2  Boullenois,  Observ.  46,  p.  488.  But  see  Burgundus,  Tract.  4, 
n.  27,  p.  116,  cited  post,  ^  574  c,  note. 

5  1  Boullenois,  Observ.  23,  p.  523,  524,  525,  528,  529  ;  Id.  p.  535  to 
p.  543  ;  Id.  p.  544  to  p.  569.     See  Henry  on  Foreign  Law,  p.  81  to  85. 


CH.   XIV.]  JURISDICTION  AND    REMEDIES.  953 

process  and  to  process  of  execution.^  He  accordingly 
puts  the  case,  where  a  Frenchman  contracts  a  common 
debt  in  a  country,  by  whose  laws  such  a  debt  imparts 
a  right  to  arrest  the  body,  and  says,  that  this  right  is  a 
mere  mode  of  enforcing  the  contract,  modus  cxequendi, 
and  consequently  it  depends  upon  the  law  of  the  place, 
where  the  execution  of  it  is  sought ;  so  that  if  it  is 
sought  in  a  place,  where  no  such  arrest  of  the  body  is 
allowable,  the  creditor  has  no  right  to  claim  any  re- 
straint by  such  a  rigorous  course.^ 

§  574  Z*.  But  a  distinction  is  taken  by  some  foreign 
jurists  between  a  contract  made  in  a  country  between 
a  stranger  and  a  citizen  thereof,  or  between  two  citi- 
zens, and  a  contract  made  in  the  same  country  between 
two  foreigners  belonging  to  another  country,  when  the 
law  of  the  place  where  the  contract  is  made,  allows  an 
arrest  of  the  person,  and  the  law  of  the  place  where  the 
suit  is  brought,  or  to  which  the  two  foreigners  belong, 
disallows  such  an  arrest.  Thus,  in  Brabant,  there  is  a 
law  of  Charles  the  Fourth,  which  prohibits  any  Bra- 
banter  from  arresting  another  Brabanter  in  a  foreign 
jurisdiction ;  and  Peckius  puts  the  question,  whether  in 
a  case  of  this  sort  any  Brabanter  may  arrest  another 
Brabanter  in  Spain,  Italy,  England,  France,  or  other 
foreign  country.  And  he  holds,  that  he  may  not ;  first, 
because  the  prohibitory  law  is  absolute,  and  compre- 
hends subjects  even  in  a  foreign  territory ;  secondly,  be- 
cause the  power  of  establishing  a  law  between  subjects 
is  not  limited  to  the  territory  of  the  sovereign  ;  thirdly, 
because,  if  the  sovereign  may  bind  his  subjects  every- 


1  Id.;  Henry  on  Foreign  Law,  p.  55,  56  ;  Id.  p.  81  to  85. 
-  1  Boullenois,  Observ.  23,  p.  525  ;   Id.  p.  523,  529  ;  Id.  Observ.  25 
p.  601,  &c. 

80  * 


954  CONFLICT    OF   LAWS.  [CH.  XIV. 

where,  this  privilege  equally  binds  them  everywhere, 
as  a  part  of  the  law ;  fourthly,  because  a  sentence  of 
excommunication  would  bind  the  subjects  in  a  foreign 
territory ;  and  a  fortiori  then,  this  privilege  does  bind 
them ;  and,  fifthly,  because  the  incapacity  of  the  prodi- 
gal binds  him  in  a  foreign  territory,  and  this  case  of 
privilege  is  as  strong  or  stronger.  Hence  he  con- 
cludes, that  not  only  the  person,  but  the  movables  of 
the  Brabanter,  (which  follow  his  person)  also  would  be 
free  from  arrest,  l/nde  siciit  persona  arrestari  nan  potest, 
ita  nee  hona  moUlia  ejusdem} 

§  574  c.  There  is  great  reason  to  doubt  both  the  pre- 
mises and  the  conclusion  of  Peckius  in  asserting  this 
distinction  ;  and  certainly  it  now  has  no  admitted  recog- 
nition in  the  common  law.~  Peckius  asserts  another 
distinction,  in  which  he  has  apparently  the  support  of 
Christinteus,  and  Everhardus,  and  some  other  jurists, 
that  where  the  law  of  the  place  of  contract  allows  an 
arrest,  but  the  law  of  the  place  of  payment  does  not, 
(and  so  e  contra  in  the  converse  case,)  the  law  of  the  lat- 
ter is  to  prevail.  He  quotes  the  language  of  Everhar- 
dus on  the  same  point  with  approbation.  Quod  si  in 
loeo  celelrati  contractus  sit  statutimi,  quod  debitor  possit  capi 
et  incarcerari,  vel  quod  instrumenta  notariorum  haheant  cxe- 
cidionem  paratam  ;  in  loco  vero  destinatm  solutionis,  7ion  sit 
simile  stcdutum,  sed  servetur  jus  commune,  cdtendatur,  quoad 
hoc,  mos,  ohservantia,  statutum,  aid  lex,  destinatce  solutionis. 


1  Peck,  de  Jure  Sist.  ch.  8,  n.  1  to  n.  6,  Peckii,  Opera,  p.  753,  edit. 
1666. 

2  Ante,  ^  568  to  ^  571.  — Mr.  Henry,  however,  thinks  the  distinction 
sound,  and  deems  it  supported  by  the  case  of  Melan  v.  The  Duke  of  Fitz 
James,  1  Bos.  &  Pull.  138 ;  ante,  ^  568  to  §  572.  Burgundus  says  ; 
AfBnia  solutioni  sunt,  praescriptio,  oblatio  rei  debitaj,  consignatio,  novatio, 
delegatio,  et  ejus  modi.     Burgundus,  Tract.  4,  n.  28,  p.  116. 


CH.  XIV.]  JURISDICTION    AND   REMEDIES.  955 

Quippc,  quod  in  his.  qiice  concernunt  judicariam  executioneiii, 
inspicitiir  locus  dcstinaice  soliitioms.^  He  then  adds  in  the 
converse  case ;  Quod  d  in  arrcstcdionc,  si  similis  casus  oc- 
curred, locus  dcstinaice  solutionis  ct  judicii  spectari  debeat? 
Christinreus  uses  similar  language.^  The  common  law 
of  England  and  America,  however,  does  not  recognize 
any  such  distinction.^ 


1  Everhard.  Consil.  78,  n.  22,  p.  208  ;  Peck,  de  Jure  Sist.  cap.  II,  p. 
758,  edit.  Peck.  Oper.  1666. 

2  Peck.  Oper.  De  Jure  Sist.  cap.  II,  n.  1,  p.  758,  759,  edit.  1666. 

3  Christin.  Tom.  1,  Decis.  283,  n.  12,  p.  355  ;  1  Boullenois,  Obser.  23, 
p.  525  ;  2  Boullenois,  Observ.  46,  p.  488. 

4  Post,  §  581  ;  Campbell  v.  Steiner,  6  Dow,  R.  116  ;  Don  v.  Lippmann, 
5  Clark  &  Finnell.  R.  1,  19,  20.  In  this  latter  case  Lord  Brougham  said, 
speaking  on  this  point ;  "  All  the  authorities,  Huber.  (De  Confl.  Leg.  in 
Div.  Imp.)  ;  Voet  (Dig.  Lib.  24,  t.  3,  s.  12)  ;  and  Lord  Karnes,  (Karnes's 
Principles  of  Equity,  3.  8.  6.  1.  5.  3,)  are  cited  in  that  case.  Campbell  v. 
Steiner  (0  Dow,  116,)  was  an  action  for  a  bill  of  costs  for  business  done  in 
this  House.  The  Court  below  there  allowed  the  rule  of  Scotch  prescrip- 
tion. That  judgment  was  affirmed  by  Lord  Eldon,  who,  however,  said, 
that  he  moved  it  with  regret.  He  said,  that  it  had  been  ruled,  that  the 
debtor  being  in  Scotland,  and  the  creditor  in  England,  the  debtor  might 
plead  the  Scotch  rule  of  prescription;  that  that  was  against  some  of  the 
old  authorities,  but  was  in  accordance  with  those  of  later  date.  That 
case  cannot  be  reconciled  with  the  principle,  that  the  locus  solutionis  is  to 
prescribe  the  law.  It  has  nothing  lo  do  with  the  case.  Why  is  it,  then, 
that  the  law  of  the  domicil  of  the  debtor  was  there  allowed  to  prevent  the 
plaintiff  from  recovering'?  It  was,  because  the  creditor  must  follow  the 
debtor,  and  must  sue  him,  where  he  resides ;  and  by  the  necessity  of  thai 
case,  was  obliged  to  sue  him  in  Scotland.  In  that  respect,  therefore,  there 
was  in  that  case  no  difference  between  the  lex  loci  solutionis,  and  the  lex 
fori;  and  it  must  be  admitted,  that  in  such  case  the  rules  of  evidence,  and 
if  so,  the  rules  of  practice,  may  be  varied,  as  they  are  applied  in  one 
court  or  the  other.  But,  governing  all  these  cases  is  the  principle,  that 
the  law  of  the  country  where  the  contract  is  to  be  enforced,  must  prevail 
in  enforcing  such  contract,  though  it  is  conceded,  that  the  lex  loci  con- 
tractus may  be  referred  to,  for  the  purpose  of  expounding  it.  If  therefore 
the  contract  is  made  in  one  country,  lo  be  performed  in  a  second,  and  is 
enforced  in  a  third,  the  law  of  the  last  alone,  and  not  of  the  other  two. 
will  govern  the  case." 


956  CONFLICT    OF    LAWS.  [CH.  XIV. 

§  574  d.  Peckius  then  puts  another  case,  where  the 
contract  of  indebtment  is  made  in  a  country  where  an 
arrest  is  not  allowed,  and  the  debtor  has  not  promised 
to  pay  in  another  country  where  an  arrest  is  allowed, 
but  he  is  found  there ;  whether  in  such  a  case  he  may, 
nevertheless,  be  arrested  there,  the  debt  being  then 
due.  He  thinks  he  may ;  because  to  this  extent  it  may 
be  truly  said,  that  the  law  and  usage  of  the  place  of 
the  judgment  ought  in  this  matter  to  be  observed ;  and 
that  in  those  things  which  concern  the  proceedings  in 
suits,  foreigners  are  bound  by  the  laws  of  the  place 
where  they  are  liable  to  be  sued.  Sed  quid,  si  qitis  con- 
traxit  in  loco,  in  quo  illiiis  loci  homines  nan  utuntur  arresto, 
neqiie  promisit  solvere  in  patria  arresti,  sedtamenillice  repe- 
ritiir  ;  idriim  nihilominus  arrestari  possit  ?  Existimo,  quod 
sic,  si  vel  tempus  solutionis  clapsum  vel  in  mora  periculum 
sit ;  quia  adhuc  veriim  est  dicerc,  quod  statutum  et  consue- 
tudo  locijiidicii  servare  dehet  in  istius  modi ;  et  in  Ms,  quce 
ad  ordinationem  judiciorum  'pertinent,  for enses  ligantur  sta- 
tutis  loci,  ubi  conveninntur? 

§  575.  In  the  next  place,  as  to  defences  arising  from 
matters  ex  ^yost facto.  These  may  be  of  the  nature  of 
counter  claims  or  set-offs  to  actions,  analogous  to  com- 
pensation in  the  Roman  and  foreign  law ;  ^  or  they  may 
be  matters  of  discharge,  such  as  discharges  under  in- 
solvent law^s,  arising  at  a  subsequent  period ;  or  they 
may  be  laws  regulating  the  time  of  instituting  suits, 
called,  in  the  foreign  law,  statutes  of  prescription,  and, 
in  the  common  law,  statutes  of  limitations.     The  latter 


1  Peckii,  Opera,  De  Jure  Sist.  cap.  11,  p,  75S,  759,  edit.  1606.  The 
same  point  was  held  in  Don  v.  Lippmann,  5  Clark  &  Finnell.  R.  1,  20  ; 
ante,  ^  574  c,  note. 

-  Polhier,  Oblig.  n.  587,  588. 


CH.   XIV.]  JURISDICTION   AND    REMEDIES.  957 

defence  will  deserve  a  very  exact  consideration.  The 
former  may  be  disposed  of  in  a  few  words.  The  sub- 
ject of  discharges  from  the  contract,  either  by  the  act 
of  the  parties,  or  by  operation  of  law,  have  been  already 
sufficiently  considered.^  As  to  set-off  or  compensation, 
it  is  held  in  the  courts  of  common  law,  that  a  set-off  to 
any  action,  allowed  by  the  local  law,  is  to  be  treated  as 
a  part  of  the  remedy ;  and  that  therefore  it  is  admissi- 
ble in  claims  between  persons  belonging  to  different 
states  or  countries,  although  it  may  not  be  admissible 
by  the  law  of  the  country  where  the  debt,  which  is  sued, 
was  contracted.-  [The  admissibility  of  the  set-off  is  to 
be  governed  entirely  by  the  lex  fori,  and  not  by  the  lex 
hci  contractus.^]  The  liens,  and  implied  hypothecations, 
and  priorities  of  satisfaction,  given  to  creditors  by  the 
law  of  particular  countries,  and  the  order  of  payment  of 
their  debts,  are,  as  we  have  already  seen,''  generally 
treated  as  belonging  to  the  proceedings  in  suits  Ad  litis 
ordinationem,  and  not  to  the  merits  of  the  claim.^ 

§  576.  In  regard  to  statutes  of  limitation  or  prescrip- 
tion of  suits,  and  lapse  of  time,  there  is  no  doubt  that 
they  are  strictly  questions  affecting  the  remedy,  and 
not  questions  upon  the  merits.     They  go,  Ad  litis  ordi- 


1  Ante,  ^  330  to  ^  352.  See  also  3  Burge,  Coram,  on  Col.  and  For.  Law. 
Pt.  2,  ch.  21,  ^  7,  p.  874  to  886. 

2Gibbst;.  Howard,  2  NewHamp.  R.  29G  ;  Ruggles  w.  Keeler,  3  Johns. 
R.  263.     See  Pothier  on  Oblig.  n.  641,  642. 

3  lb.  Bank  of  Galliopolis  v.  Trimble,  6  B.  Monroe,  601.  But  see 
Bliss  V.  Houghton,  13  New  Hamp.  R.  126  ;  Harrison  v.  Edwards,  12 
Verm.  R.  648. 

4  Ante,  ^  322  b  to  328,  §  423  a. 

5  Rodenburg,  De  Div.  Stat.  tit.  2,  ch.  5,  n.  15,  16  ;  2  Boullenois,  Appx. 
p.  47,  49  ;  1  Boullenois,  Observ.  25,  p.  634,  635,  639  ;  Id.  p.  685  ;  Id.  p. 
818.  See  also  P.  Voet,  De  Stat.  ^  10,  ch.  1,  n.  2  to  n.  6,  p.  282  to  289, 
edit.  1715  ;  Id.  p.  340  to  346,  edit.  1661. 


958  CONFLICT    OF   LAWS.  [CH.  XIV. 

tiationem,  and  not  Ad  litis  decisionem,  in  a  just  juridical 
sense.^  The  object  of  them  is  to  fix  certain  periods 
within  which  all  suits  shall  be  brought  in  the  courts  of 
a  state,  whether  they  are  brought  by  or  against  subjects, 
or  by  or  against  foreigners.  And  there  can  be  no  just 
reason,  and  no  sound  policy,  in  allowing  higher  or  more 
extensive  privileges  to  foreigners  than  are  allowed  to 
subjects.  Laws,  thus  limiting  suits,  are  founded  in  the 
noblest  policy.  They  are  statutes  of  repose,  to  quiet 
titles,  to  suppress  frauds,  and  to  supply  the  deficiency 
of  proofs,  arising  from  the  ambiguity  and  obscurity,  or 
the  antiquity  of  transactions.  They  proceed  upon  the 
presumption,  that  claims  are  extinguished,  or  ought  to 
be  held  extinguished,  whenever  they  are  not  litigated 
in  the  proper  forum,  within  the  prescribed  period. 
They  take  away  all  solid  grounds  of  complaint ;  because 
they  rest  on  the  negligence  or  laches  of  the  party  him- 
self. They  quicken  diligence,  by  making  it  in  some 
measure  equivalent  to  right.  They  discourage  litiga- 
tion, by  burying  in  one  common  receptacle  all  tlie  accu- 
mulations of  past  times,  which  are  unexplained,  and 
have  now,  from  lapse  of  time,  become  inexplicable.  It 
has  been  said  by  John  Voet  with  singular  felicity,  that 
controversies  are  limited  to  a  fixed  period  of  time,  lest 
they  should  be  immortal,  while  men  are  mortal :  JVe 
aiitem  lites  immortelles  essent,  dum  Utig antes  mortales 
sunt.^ 

§  577.  It  has  accordingly  become  a  formulary  in  in- 
ternational jurisprudence,  that  all  suits  must  be  brought 


1  I  Boullenois,  Observ.  23,  p.  530  ;  Ferguson  v.  Fyffe,  8  Clark.  &  Fin. 
121,  MO. 

2  J.  Voet,  ad  Pand.  Lib.  5,  tit.  1,  ^  53,  p.  338.     . 


CH.  XIV.]  JURISDICTION   AND   REMEDIES.  959 

within  the  period  prescribed  by  the  local  law  of  the 
country  where  the  suit  is  brought,  {Lex  fori,)  other- 
wise the  suits  will  be  barred  ;  and  this  rule  is  as  fully 
recognized  in  foreign  jurisprudence,  as  it  is  in  the  com- 
mon law.^  Not,  indeed,  that  there  are  no  diversities  of 
opinion  upon  this  subject ;  but  the  doctrine  is  establish- 
ed by  a  decisive  current  of  Avell  considered  authorities.^ 
Thus,  Huberus  lays  down  the  doctrine  in  clear  terms, 
applying  it  to  the  A^ery  case  of  a  prescription ;  and  he 
assigns  the  reason ;  Ratio  hcec  est,  cpiod prwscriptio  et  exe- 
eiitio  non  pertinent  ad  valorem  contractils,  sed  ad  tempiis  et 
modum  actionis  instituendce,  qiice  i^er  se,  quasi  contractum, 
separatum  negotium  constituit.  Adeoque  receptiim  est  opti- 
ma ratione,  lit  ordinandis  jiidiciis,  loci  consiiettido,  uhi  agi- 
tur,  etsi  de  negotio,  alibi  celelrato,  spectatur,  id  docet  San- 
diiis,  uhi  tradit,  etiam  in  execidione  sententice  alihi  latce,  scr- 
vati  jus  loci,  in  quo  fit  executio,  non  uhi  res  judicata  est? 


^  The  authorities  in  the  common  law  are  very  numerous.  A  consider- 
able number  of  them  are  cited  in  4  Cowen,  R.  528,  note  10  ;  Id.  530  ; 
Van  Reimsdyk  v.  Kane,  1  Gallis.  R.  371 ;  Le  Roy  v.  Crowninshield,  2 
Mason,  R.  351  ;  British  Linen  Company  v.  Drummond,  10  Barn.  & 
Cressw.  903  ;  De  La  Vega  v.  Vianna,  1  Barn.  &  Adolp.  R.  284  ;  Huber 
V.  Sleiner,  2  Bing.  New  Cases,  202,  209  to  212  ;  Don  v.  Lippmann,5 
Clark  &  Finnell.  R.  1,  13,  14,  15,  16,  17  ;  Medbury  v.  Hopkins,  3  Con- 
nect. R.  472  ;  Woodbridge  v.  Wright,  3  Connect.  R.  523  ;  Bank  of  U.  S. 
V.  Donnally,  8  Peters,  R.  361  ;  Bulger  v.  Roche,  11  Pick.  36  ;  De  Couche 
V.  Savatier,  3  Johns.  Ch.  R.  190;  Lincoln  v.  Baltelle,  6  Wend.  R.  475  ; 
Brown  v.  Stone,  4  Louis.  Ann.  R.  235.  And  this  although  the  contract 
may  be  dated  and  payable  in  another  State.  Young  v.  Crossgrove,  4 
Louis.  Ann.  R.  233. 

2  See  Ersk.  Inst.  B.  3,  tit.  7,  n.  49,  p.  633,  634. 

3  Huberus,  Tom,  2,  Lib.  1,  tit.  3,  De  Conflict.  Leg.  ^  7  ;  1  Hertii, 
Opera,  De  Collis.  ^  4,  n.  65,  p.  150,  151,  edit.  1737;  Id.  p.  312,  edit. 
1716.  Hertius  seems  of  a  different  opinion  ;  saying,  that,  if  the  pre- 
scription only  of  the  place,  where  the  suit  is  brought,  could  prevail,  the 
times  of  prescription  would  be  very  uncertain  ;  for  a  man  might  frequently 
be  sued  in  different  places.     1  Hertii,  Opera,  De  Collis,  Leg.  ^  4,  n.  65, 


960  CONFLICT    OF   LAWS.  [CH.  XIV. 

Paul  Voet  says ;  TJhi  quoad  actionis  intentationem,  occurrit 
ilia  dlfficultas,  an  si  diversa  sint  statuta  circa  actionis  fini- 
tionem  sen  termimim,  spectandus  sit  terminus  statuti  deUtoris, 
an  creditoris  ?  Respondeo  ;  quia  actor  sequitur  forum  rei, 
ideo  extraneus  petens  a  reo,  quod  sihi  dehetur,  sequetiir  ter- 
minum  statidi  prcescriptum  actioni  in  foro  rei.  Et  quia 
Jioc  statutum  non  exserit  vires  extra  ierritorimn  statiientis, 
ideo,  etiam  rco  alihi  convcnto,  tale  statidum  ohjicere  non  po- 
terit)  Boullenois  holds  a  similar  doctrine,  asserting, 
that  the  bar  of  prescription  is  a  part  of  the  modtis  pro- 
cedendi?  It  is  in  vain,  (he  adds,)  to  assert,  that  the  bar 
of  prescription  is  a  peremptory  exception,  [exceptio 
peremptoria,)  and  that,  according  to  Baldus,  Exceptio 
peremptoria  pertinet  ad  decisionem  causce  ; —  That  remark 
properly  applies  to  a  peremptory  exception,  which  falls 
upon  the  contract,  and  not  to  one,  which  falls  only  upon 
the  action  or  proceedings  in  a  suit.^  Many  other  jurists 
might  be  cited  in  support  of  this  doctrine,  if  it  were 
necessary  to  go  at  large  into  the  subject.^     The  doc- 


p.  150,  edit.  1737  ;  Id.  p.  212;  edit.  1716.  See  also  the  opinions  of  other 
jurists  to  the  same  point  in  1  Boullenois,  Observ.  23,  p.  528,  529,  530  ;  2 
Boullenois,  Observ.  46,  p.  487,  488  ;  Erskine's  Inst.  B.  3,  tit.  7,  ^  48,  p. 
633,  634;  J.  Voet,  ad  Pandect.  Tom.  2,  Lib.  44,  tit.  3,  ^  10,  12  ;  3  Burge, 
Coram,  on  Col.  and  For.  Law,  Pt.  2,  ch.  21,  ^  7,  p.  878,  879. 

1  P.  Voet,  de  Stat.  §  10,  ch.  1,  n.  1,  p.  281,  edit.  1715;  Id.  p.  340, 
edit.  1661. 

2  1  Boullenois,  Observ.  23,  p.  530  ;  post,  ^  579. 

3  Ibid. 

4  See  1  Boullenois,  Observ.  23,  p.  530,  550  ;  2  Boullenois,  Observ.  46, 
p.  455,  456  ;  Casaregis  Disc.  179,  ^  59,  60  ;  P.  Voet,  De  Slatut.  ^  10,  ch. 
1,^  1,  p.  281,  edit.  1715;  Id.  p.  339,  340,  edit.  1661.  See  3  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  10,  ^  5,  p.  122,  123,  124  ;  Id. 
ch.  21,  ^  7,  p.  878,  879,  880;  Erskine,  Inst.  B.  3,  tit.  7,  ^  48,  p.  633, 
634. 


CH.    XIV.]  JURISDICTION   AND    REMEDIES.  961 

trine  of  the  Scottish  courts  is  in  precise  conformity  to 
that  of  the  common  law.^ 

§  578.  But  if  the  question  were  entirely  new,  it 
would  be  difficult  upon  principles  of  international  justice 
or  policy  to  establish  a  different  rule.  Every  nation 
must  have  a  right  to  settle  for  itself  the  times,  and 
modes,  and  circumstances,  within  and  under  which  suits 
shall  be  litigated  in  its  own  courts.  There  can  be  no 
pretence  to  say,  that  foreigners  are  entitled  to  crowd  the 
tribunals  of  any  nation  with  suits  of  their  own,  which 
are  stale  and  antiquated,  to  the  exclusion  of  the  com- 
mon administration  of  justice  between  its  own  subjects. 
As  little  right  can  foreigners  have  to  insist,  that  the 
times  and  modes  of  proceeding  in  suits,  provided  by  the 
laws  of  their  own  country,  shall  supersede  those  of  the 
nation  in  which  they  have  chosen  to  litigate  their  con- 
troversies, or  in  whose  tribunals  they  are  properly  par- 
ties to  any  suit. 

§  579.  The  reasoning  sometimes  insisted  upon  by 
foreign  jurists,  in  opposition  to  this  plain  and  intelligi- 
ble doctrine,  is,  in  the  first  place,  that  the  statute  of 
limitations  or  prescription  really  operates  as  a  peremp- 
tory bar,  and  therefore  does  not  in  fact  touch  the  mode 
of  proceeding,  but  the  merits  of  the  case ;  JVou  tangit 
modum  simpUcem  iwoccdcndi  ;  sed  tangit  meritum  caiisce  ;  ~ 
and.  in  the  next  place,  that  it  subjects  the  party  to  dif- 
ferent prescriptions  in  different  places,  and  therefore 
leaves  his  rights  in  uncertainty.^     The  latter  objection 

1  Erskine,  Inst.  B.  3,  tit.  7,  ^  48,  p.  633;  Le  Roy  v.  Crowninshield,  2 
Mason,  R.  174  ;  Kames  on  Equity,  B.  3,  ch.  8,  k^  4,  6  ;  P.  Voet,  De 
Statut.  ^  10,  ch.  1,  n.  1,  p.  280,  281,  edit.  1715;  Id.  p.  339,  340,  edit. 
1661. 

2  1  Boullenois,  Observ.  23,  p.  529,  530  ;  ante,  \  all. 

3  1  Hertii  Opera,  De  Collis.  Leg.  §  4,  n.  65,  p.  150, 151,  edit.  1737  ;  Id. 
p.  212,  edit.  1716. 

CONFIi.  81 


962  CONFLICT    OF   LAWS.  [CH.  XIV. 

may  be  answered  by  the  obvious  consideration,  that  if 
the  party  chooses  to  reside  within  any  particular  terri- 
tory, he  thereby  subjects  himself  to  the  laws  of  that  terri- 
tory, as  to  all  suits  brought  by  or  against  him.  It  may 
be  added,  that,  as  the  law  of  prescription  of  a  particular 
country,  even  in  case  of  a  contract  made  in  such  coun- 
try, forms  no  part  of  the  contract  itself,  but  merely  acts 
upon  it  ex  i^ost  facto  in  case  of  a  suit,  it  cannot  properly 
be  deemed  a  right  stipulated  for,  or  included  in  the 
contract.  Even  these  foreign  jurists  do  not  pretend, 
that  the  prescription  of  a  country  where  a  contract  is 
made,  constitutes  a  part  of  the  contract.  What  they 
contend  for  amounts  at  most  only  to  'this,  that  the  pre- 
scription of  the  Lex  loci  contractus  acts  upon,  and  apper- 
tains to,  the  decision  of  the  cause.  Hoc  pertinet  ad  de- 
cisionem  causce,  says  Baldus.  Prescrijytio  utiqiie  ad  con- 
tractmn  et  meritum  catisce  2')crtmet,  non  ad  p'OcesBimi,  says 
Gerhard  Titius.^  This  objection  indeed  is  fully  and 
satisfactorily  answered  by  Boullenois  in  the  passage 
above  cited.^ 

1  1  Boullenois,  Observ.  23,  p.  529,  530 ;  Ersk.  Inst.  B.  3,  tit.  7,  h  48, 
p.  633,  631. 

2  Ante,  ^  577. — Lord  Brougham  also  in  delivering  his  judgment  in 
Don  V.  Lippmann,  1  Clark  &  Finnell.  p.  1,  15,  16,  met  the  very  objection. 
His  language  on  that  occasion  was  (it  being  the  case  of  a  bill  of  exchange 
accepted  and  payable  in  France,  and  sued  afterwards  in  Scotland,  and  the 
Scottish  prescription  set  up  as  a  bar)  ;  "  It  is  said,  that  the  limitation  is 
of  the  very  nature  of  the  contract.  First,  it  is  said,  that  the  party  is  bound 
for  a  given  time,  and  for  a  given  time  only.  That  is  a  strained  construc- 
tion of  the  obligation.  The  party  does  not  bind  himself  for  a  particular 
period  at  all,  but  merely  to  do  something  on  a  certain  day,  or  on  one 
or  other  of  certain  days.  In  the  case  at  the  bar  the  obligation  is  to  pay 
a  sum  certain  at  a  certain  day ;  but  the  law  does  not  suppose,  that  he 
is  at  the  moment  of  making  the  contract  contemplating  the  period,  at 
which  he  may  be  freed  by  lapse  of  time  from  performing  it.  The  ar- 
gument, that  the  limitation  is  of  the  nature  of  the  contract,  supposes,  that 
the  parties  look  only  to  the  breach  of  the  agreement.  Nothing  is  more 
contrary  to  good  faith,  than  such  a  supposition,  that  the  contracting  par- 


CH.  XIV.]  JURISDICTION  AND   REMEDIES.  963 

§  580.  The  other  objection  is  well  founded  in  its 
form,  but  it  does  not  shake  the  ground  of  the  general 
doctrine.  It  is  true,  as  Baldus  contends,  that  the  sta- 
tute of  limitations  or  prescription  does  go  to  the  deci- 
sion of  the  cause  ;  Exccptio  ijeremptoria  iKvtinct  ad  deci- 
■sioncm  causce.  But  that  is  not  the  question.  The  ques- 
tion is,  whether  it  is  a  matter  of  the  original  merits,  as 
for  example,  a  question  of  the  original  validity,  or  in- 
terpretation, or  discharge  of  a  contract,  or  whether  it  is 
a  matter  touching  the  time  and  mode  of  remedial  jus- 
tice, which  is  provided  by  law  to  redress  grievances,  or 
to  prevent  wrongs,  or  to  suppress  vexatious  litigation. 
Suppose  a  nation  were  to  declare,  (as  France  has  done 
in  regard  to  foreigners  in  some  cases,)  that  no  suits 
should  be  maintained  in  its  own  courts  between  fo- 
reigners.^ This  would  be  a  peremptory  exception. 
But  could  it  be  denied,  that  France  had  a  right  so  to 
regulate  the  jurisdiction  of  its  own  tribunals  ?  Or  that 
it  was  an  enactment  touching  remedies  ?  Considering 
in  their  true  light,  statutes  of  limitation  or  prescription 
are  ordinarily  simple  regulations  of  suits,  and  not  of 
rights.  They  regulate  the  times  in  which  rights  may 
be  asserted  in  courts  of  justice,  and  do  not  purport  to 
act  upon  those  rights.  Boullenois  has  truly  said  ', 
L' exception  ne  tomhe,  que  sur  V action  ct  la  procedure  inten- 
Ue?  Pothier  very  properly  treats  prescription,  {Fin  de 
mn  recevoir)  not  so  much  as  an  extinguishment  of  the 


lies  look  only  to  the  period,  at  which  the  Statute  of  Limitations  will 
begin  to  run.  It  will  sanction  a  wrong  course  of  conduct,  and  will  turn 
a  protection  against  laches  into  a  premium  for  evasiveness." 

1  Ante,  ^  542. 

2  1  Boullenois,  Observ.  23,  p.  530  ;  ante,  ^  bll ;  Ersk.  Inst.  B.  3,  tit. 
7,  §  48,  p.  633,  634. 


964  CONFLICT   OP   LAWS.  [CH.  XIV. 

debt  or  claim,  as  an  extinguishment  of  the  right  of 
action  thereon.^  And  this  is  precisely  the  manner  in 
which  the  subject  is  contemplated  at  the  common  law 
as  well  as  by  many  foreign  jurists.^ 

§  581.  And  here,  again,  upon  the  same  mistaken 
foundation  already  discussed,  some  foreign  jurists  (as 
we  have  seen^)  maintain  the  doctrine  in  relation  to 
contracts,  (a  doctrine  repudiated  by  the  common  law,^) 
that,  if  they  are  made  in  one  place,  and  to  be  performed 
or  paid  in  another  place,  the  law  of  prescription  of  the 
latter  place  is  to  govern.  Such  is  the  opinion  of  Ever- 
hardus.  Aiit  qucerimus  (saj^s  he)  quis  locus  inspiciatiir, 
quoad  extinctionem  actionis  2J^'opter  prcescriptionem  statuto- 
riam,  vigentem  in  iino  loco,  ct  non  in  alio,  iibi  statuta  loco- 
rum  sunt  diversa.  Et  cerium  est,  quod  inspicitiir  locus  des- 
tinatcB  solutionis.^  Bartolus,  Burgundus,  and  Christi- 
nseus  hold  the  same  opinion.'^     Of  course,  the  doctrine 


1  Pothier  on  Oblig.  n.  640,  641,  642. 

2  Sturgis  V.  Crowninshield,  4  Wheat.  R.  122,  200,  207. 

3  J.  Voet,  ad  Pand.  Lib.  44,  tit.  3,  §  10  ;  D'Aguesseau,  CEuvres,  Tom. 
5,  p.  374,  4to.  edit.  ;  Le  Ftoy  v.  Crowninshield,  2  Mason,  R.  170,  171  ; 
Merlin,  R6pert.  tit.  Prescription,  Sect.  I.  ^3,  n.  7.  —  Corporations  are 
deemed  to  be  domiciled  in  the  country  from  which  they  derive  their  act  or 
charter  of  incorporation  ;  and  therefore  the  same  rule  applies  to  them  as 
applies  to  pri%-ate  persons  in  cases  of  prescription.  3  Burge,  Comm.  on 
Col.  and  For.  Law,  Pt.  2,  ch.  21,  ^7,  p.  881,  882.  See  Louisville  Rail- 
road Company  v.  Letson,  2  How.  U.  S.  R.  497. 

4  Ante,  ^  574  c. 

5  Ibid. 

6  Everhard.  Consil.  78,  p.  208  ;  2  Boullenois,  Observ.  46,  p.  488. 

"^  2  Boullenois,  Observ.  46,  p.  488.  —  It  is  surprising,  that  Mr.  Henry 
should  have  cited  this  doctrine  of  foreign  authors,  as  sound  law  (appa- 
rently copying  it  from  Boullenois)  without  considering  that  the  whole 
course  of  p]nglish  opinions  on  this  subject  disclaimed  it.  (Henry  on  Fo- 
reign Law,  ch.  8,  ^  1,  2,  p.  54,  55.)  Pardessus  says,  that,  when  a  debtor 
pleads  a  statute  of  prescription,  the  right  to  use  this  plea,  and  the  time 
within  which  it  should  be  pleaded,  will  be  regulated  by  the  law  of  the 


CH.   XIV.]  JURISDICTION   AND    REMEDIES.  965 

of  these  authors  must  be  understood  to  be  limited  to 
prescription  in  personal  actions  ;  for,  as  to  prescription 
in  cases  of  immovable  property,  it  is  beyond  reason- 
able doubt,  that  it  is  and  ought  to  be  governed  purely 
by  the  Lex  hci  rei  sitcc}  Dumoulin  has  laid  down  the 
distinction  in  broad  but  exact  terms.  Aut  statutiim  dls- 
ponit  de  ]jrcescripUone,vel  usuccqmne  rerum  corporcdimu,  sive 
moliUum,  sive  immolUium,  ct  tunc  indisUnde  {mpicUur  locus, 
uU  res  est.  Idem  in  relus  sive  Jurihus  incorporalihus  limi- 
tatis  ad  res  corporales,  sivd  qucdenus  ad  illas  res  limiiantur  ; 
Secus  si  de  Juribiis,  vel  actiomhus  personalihus,  sive  mo- 
mentaneis,  sive  anmds  pei^sonce  adJierentihiis,  id  est  non  limi- 
tatis  ad  certas  res,  etiamsi  illis  actiomhus  adhwreat  hijpotlieca 
generalis,  vel  accessoria  rerum  corporalium?  Paul  Voet 
takes  the  like  distinction.  Quid,  si  itaque  conteniio  de  ali- 
quo  jure  in  re,  seu  ex  ipsa  re  descendente  ?  vel  ex  contractu, 
velactionepersonali,  sed  hi  rem  scripta  ?     An  spectabitur  loci 


place  where  he  has  promised  to  pay  ;  or,  if  this  place  has  not  been  deter- 
mined, then  at  the  domicil  of  the  debtor,  at  the  time  when  he  contracted 
the  obligation  ;  because,  prescription  being  a  plea  given  to  the  debtor 
against  the  demand  of  his  creditor,  it  is  naturally  in  the  domicil  of  the 
debtor  or  of  his  government  that  he  should  find  this  protection.  Pardes- 
sus,  Tom.  5,  Pt.  6,  tit.  9,  eh.  2,  ^  2,  art.  1445,  p.  275  ;  Henry  on  Fo- 
reign Law,  Appendix,  p.  237.  Pardessus  goes  on  to  state,  that  these 
rules  apply  to  the  case  where  several  sureties  for  the  same  debt  reside  in 
jurisdictions,  where  the  laws  respecting  prescription  are  different.  Each, 
in  becoming  a  surety,  must  be  supposed  to  have  intended  to  enjoy  all  the 
real  pleas  or  exceptions  existing  in  favor  of  the  principal  debtor,  without 
renouncing  the  particular  prescription  in  his  own  favor,  to  extinguish  his 
obligation  as  surety,  which  is  regulated  by  the  law  of  his  domicil  at  the 
moment  when  he  signed  the  contract.  Pardessus,  Id.  art.  1495,  p.  275, 
276  ;  Henry  on  Foreign  Law,  238.  This  is  certainly  pressing  the  doc- 
trine to  a  very  great  extent. 

1  1  Boullenois,  Observ.  20,  p.  350  ;    J.  Voet,  ad  Pand.  Lib.  44,  tit.  3, 
§  12. 

2  MoUn.  Opera,  Tom.  3,  Coram,  ad  Cod.  Lib.  1,  tit.  1,  1.  1,  p.  557,  De 
Prescript,  edit.  1681  ;  1  Boullenois,  Observ.  20,  p.  350. 

81* 


966  CONFLICT    OF   LAWS.  [CH.  XIV. 

statutum,  uhidominiis  liahet  domkilium,  an  statidimi  rei  sitce  ? 
Bespondeo  ;  Statutum  rei  sitce.  Ut  tamen  actio  etiam  inten- 
tari  possit,  ubi  reus  halet  domicilium.  Idqtie  oUinet,  sive 
forensis  sit  ille,  de  cvjus  re  controversia  est,  sive  incola  loci, 
uhires  est  sita}  John  Voet  maintains  the  same  doctrine. 
Si  prcescriptioni  implendce  alia  prcefinita  sint  tempora  in  loco 
domicilii  actoris,  alia  in  loco  uhireus  domicilium  fovet,  spectan- 
dum  videtur  tempiis,  quod  oUinet  ex  statuto  loci,  in  quo  reus 
commoratur,  nisi  de  immohiliiim  prcescriptione  qucBstio  sit ; 
quo  casu  necpie  leges  domicilii  prcescrihentis,  neque  leges  domi- 
cilii ejus,  in  cujus prcejudicium  prcescriptix)  sit,sedmagis  leges 
loci,  in  quo  sita  immolilia,  spectandce  sunt ;  cum  iralcditium 
sit,  immolilia  regi  lege  loci,  in  quo  sita  sunt.^  Pothier  and 
Merlin  fully  recognize  the  same  doctrine.^  The  com- 
mon law  has  firmly  fixed  its  own  doctrine,  that  the  pre- 
scription of  the  Lex  fori  must  prevail  in  all  cases  of  per- 
sonal actions.  In  all  cases  of  real  actions,  and  of  actions 
touching  things  savoring  of  the  realty,  the  prescription 
of  the  law  rei  sitce  is  also  to  prevail.  And  as  by  the  com- 
mon law,  no  actions  of  this  sort  can  be  brought  ex  di- 
recto,  except  in  the  place  rei  sitce  ;  it  follows  that  the  Lex 
fori  governs,  as  a  universal  rule,  applicable  to  all  cases.^ 


1  P.  Voet.  De  Statut.  ^  9,  ch.  1,  n.  2,  p.  251,  edit.  1715  ;  Id.  p.  305, 
edit.  1661. 

2  J.  Voet,  ad  Pand.  Tom.  2,  Lib.  44,  tit.  3,  n.  12,  p.  887  ;  3  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  10,  ^  5,  p.  122,  125  ;  J.  Voet, 
ad  Pand.  Tom.  1,  Lib.  5,  tit.  1,  n.  77. 

3  Pothier,  Traite  de  la  Prescript,  n.  247  ;  Merlin,  R6pert.  tit.  Prescrip- 
tion, Sect.  I.  ^  3,  n.  7;  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2, 
ch.  10,  ^  5,  p.  123,  124. 

4  See  British  Linen  Company  tJ.  Drummond,  10  Barn.  &  Ores.  903 ; 
Huber  V.  Steiner,  2  Bing.  N.  Cas.  202,  209  to  216  ;  Don  v.  Lippmann, 
5  Clark  &  Finnel.  R.  I,  13  to  17  ;  Bulger  v.  Roche,  11  Pick.  R.  36  ; 
De  Couche  v.  Savatier,  3  Johns,  Ch.  R.  190,  218,  219  ;  De  la  Vega  v. 
Vianna,  1  Barn.  &  Adolph.  284 ;  Lincoln  v.  Battelle,  6  Wend.  R.  475  ; 


CH.  XIV.]  JURISDICTION   AND   REMEDIES.  967 

§  582.  But  although  statutes  of  limitation  or  pre- 
scription of  the  place  where  the  suit  is  brought,  may 
thus  properly  be  held  to  govern  the  rights  of  parties  in 
such  suit,  or  as  the  proposition  is  commonly  stated,  the 
recovery  must  be  sought,  and  the  remedy  pursued 
within  the  times  prescribed  by  the  Lex  fori,  without  re- 
gard to  the  Lex  loci  contractus,  or  the  origin  or  merits  of 
the  cause ;  yet  there  is  a  distinction  which  deserves 
consideration,  and  which  has  been  often  propounded. 
It  is  this.  Suppose  the  statutes  of  limitation  or  pre- 
scription of  a  particular  country  do  not  only  extinguish 
tlie  right  of  action,  but  the  claim  or  title  itself,  ipso  facto, 
and  declare  it  a  nullity  after  the  lapse  of  the  prescribed 
period ;  and  the  parties  are  resident  within  the  juris- 
diction during  the  whole  of  that  period,  so  that  it  has 
actually  and  fully  operated  upon  the  case ;  under  such 
circumstances  the  question  might  properly  arise,  whether 
such  statutes  of  limitation  or  prescription  may  not  af- 
terwards be  set  up  in  any  other  country  to  which  the 
parties  may  remove,  by  way  of  extinguishment,  or  trans- 
fer of  the  claim  or  title.  This  is  a  point  which  does  not 
seem  to  have  received  as  much  consideration  in  the  de- 
cisions of  the  common  law,  as  it  would  seem  to  require. 
That  there  are  countries  in  which  such  regulations  do 
exist,  is  unquestionable.  There  are  states  which  have 
declared,  that  all  right  to  debts,  due  more  than  a  pre- 
scribed term  of  years,  shall  be  deemed  extinguished ; 
and  that  all  titles  to  real  and  personal  property,  not 
pursued  within  the  prescribed  time,  shall  be  deemed 


ante,  ^552  to  ^  555;  Broh  v.  Jenkins,  9  Martin,  R.  5i6 ;  3  Burge, 
Comm.  on  Col.  and  For.  Law,  Pt.  2,  ch.  10,  \  5,  p.  123,  124,  125.— 
The  Ivoman  law  seems  to  iiave  given  an  election  to  the  plaintiff  to  bring 
his  action  in  the  domicil  of  the  defendant  (reus)  or  of  the  rci  sitee.  Ante, 
§  5:-2  ;  1  Boullenois,  Obsetv.  25,  p.  618,  619. 


968  CONFLICT    OF  LAWS.  [CH.   XIV. 

forever  fixed  in  the  adverse  possessor.^  Suppose,  for 
instance,  (as  has  occurred,)  personal  property  is  ad- 
versely held  in  a  State  for  a  period  beyond  that  pre- 
scribed by  the  laws  of  that  State,  and  after  that  period 
has  elapsed  the  possessor  should  remove  into  another 
State,  which  has  a  longer  period  of  prescription,  or  is 
without  any  prescription  j  could  the  original  owner 
assert  a  title  there  against  the  possessor,  whose  title  by 
the  local  law,  and  the  lapse  of  time,  had  become  final 
and  conclusive  before  the  removal  ?  It  has  certainly 
been  thought,  that,  in  such  a  case,  the  title  of  the  pos- 
sessor cannot  be  impugned.^  If  it  cannot,  the  next 
inquiry  is,  whether  the  bar  of  a  statute  extinguishment 
of  a  dehtjkffe  loci,  ought  not  equally  to  be  held  a  per- 
emptory exception  in  every  other  country  ?  This  sub- 
ject may  be  deemed  by  some  persons  still  open  for 
future  discussion.  It  has,  however,  the  direct  authority 
of  the  Supreme  Court  of  the  United  States  in  its  favor ;  ^ 
and  its  correctness  has  been  recently  recognized  by  the 
Court  of  Common  Pleas  in  England."*  In  the  Ameri- 
can Courts  other  than  the  Supreme  Court,  it  does  not 
seem  hitherto  to  have  obtained  any  direct  approval  or 


1  See  J,  Voet,  ad  Pand.  Lib.  44,  tit.  3,  ^  5,  6,  9  ;  Ersk.  Inst.  B.  3,  tit.  7, 
^  1,  2,  7,  8;  Beckfordu.  Wade,  17Ves.  86  ;  Lincoln  v.  Battelle,  6  Wend. 
R.  475.  —  A  statute  of  this  sort,  extinguishing  the  title  to  real  estate 
after  an  adverse  possession,  and  transferring  the  title  to  the  adverse  pos- 
sessor, actually  exists  in  the  State  of  Rhode  Island.  Act  of  1822,  Digest 
of  Rhode  Island  Laws,  p.  363,  364,  edit.  1822. 

2  See  Beckford  v.  Wade,  17  Ves.  88  ;  Newby  v.  Blakeley,  3  Hen.  & 
Mum.  R.  57  ;  Brent  v.  Chapman,  5  Cranch,  R.  358  ;  Shelby  v.  Grey, 
11  Wheat.  R.  361,  371,  372.  But  see  Lord  Dudley  i-.  Warde,  Ambler, 
R. 113. 

3  Shelby  v.  Grey,  11  Wheat.  R.  361,  371,  372. 

■1  Huber  v.  Steiner,  2  Bing.  N.  Cases,  202,  211.  See  also  Don  v.  Lipp- 
mann,  5  Clark  &  Finnell.  1,  16,  17  ;  3  Burge,  Comm.  on  Col.  and  For. 
Law,  Pt.  2,  oh.  10,  §  5,  p.  883,  884. 


CH.   XIV.]  JURISDICTION   AND    REMEDIES.  969 

recognition.  But  in  all  the  cases  in  which  the  question 
might  have  been  incidentally  discussed  in  these  Courts, 
the  statutes  under  consideration  did  not  i)urport  to  ex- 
tinguish the  right,  but  merely  the  remedy.^ 

§  582  a.  A  question  of  a  kindred  character  has  been 
discussed  of  late  years,  both  in  England  and  America  ; 
and  that  is,  whether  the  Statute  of  Limitations,  or  pre- 
scription of  the  country  where  a  suit  is  brought,  is  a 
good  defence  and  bar  to  a  suit  brought  there  to  enforce 
a  foreign  judgment.  In  both  countries  it  has  been  held, 
that  it  is  a  good  defence  and  bar.^  In  America  the  case 
was  stronger  than  it  was  as  presented  in  England, 
for  it  was  a  judgment  rendered  in  one  of  the  United 
States,  which  was  sought  to  be  enforced  in  another  State 
of  the  Union ;  and  therefore  fell  within  the  clause  of 
the  Constitution,  which  declares,  that  full  faith,  and  cre- 
dit, and  effect,  shall  be  given  in  each  State  to  the  judi- 
cial proceedings  of  every  other.  It  was  thought,  that 
this  clause  did  not  in  the  slightest  degree  vary  the  ap- 
plication of  the  general  principle,  that  in  all  matters  of 
proceedings  in  courts  the  Lex  loci  was  to  govern.^ 


1  On  this  subject,  see  Decouche  v.  Savatier,  3  Johns.  Ch.  R.  190,  218, 
219  ;  Van  Reimsdyk  v.  Kane,  1  Gallis.  R.  371  ;  Le  Roy  v.  Crowninshield, 
2  Mason,  R.  151,  and  the  cases  there  cited  ;  Lincoln  v.  Battelle,  G  Wend. 
R.  475  ;  1  Domat,  B.  3,  ^  4,  art.  1,  p.  464  ;  Id.  art.  10,  p.  460.  John 
Voet  says  in  one  place;  "Si  prasscriptioni  implendaj  alia  prcfinita  sint 
tempera  in  loco  domicilii  actoris,  alia  in  loco,  ubi  reus  domicilium  fove 
spectandum  videtur  tempus,  quod  obtinet  ex  statuto-.loci,  in  quo  reus  com- 
moratur."     J.  Voet,  ad  Pand.  Lib.  44,  tit.  3,  ^  12,  p.  877. 

2  Don  V.  Lippraann,  5  Clark  &  Finnell.  R.  1,  19,  20,  21  ;  McElraoyle 
V.  Cohen,  13  Peters,  R.  312. 

3  Tovvnsend  v.  Jemison,  9  How.  U.  S.  R.  419  ;  Me  Elmoyle  v.  Cohen, 
13  Peters,  R.  312,  327,  328.  —  Mr.  Justice  Wayne,  in  delivering;  the  opi- 
nion of  the  Court,  after  adverting  to  the  clause  of  the  Constitution  of  the 
United  States,  and  the  interpretation  thereof,  said  ;  "  Such  being  the  faith, 
credit,  and  effect,  to  be  given  to  a  judgment  of  one   State  in   another  by 


970  CONFLICT   OF   LAWS.  [CH.  XIV. 

§  582  h.     It  may  be  important,  then,  carefully  to  dis- 
tinguish between  cases,  where  the  statute  of  limitations 


the  Constitution  and  the  act  of  Congress,  the  point  under  consideration  will 
be  determined  by  settling,  what  is  the  nature  of  a  plea  of  the  statute  of 
limitations.  Is  it  a  plea  that  settles  the  right  of  a  party  on  a  contract  or 
judgment,  or  one  that  bars  the  remedy  ?  Whatever  diversity  of  opi- 
nion there  may  be  among  jurists  upon  this  point,  we  think  it  well  settled 
to  be  a  plea  to  the  remedy  ;  and  consequently,  that  the  lex  fori  must  pre- 
vail. Higgins  V.  Scott,  2  Barn.  &  Adolph.  413;  4  Cowen,  R.  528,  note 
10;  Id.  530;  Van  Reimsdyk  v.  Kane,  1  Gallis.  R.  371;  Le  Roy  v. 
Crowninshield,  2  Mason,  R.  351  ;  British  Linen  Co.  v.  Drummond,  10 
Barn.  &  Cresw.  903  ;  De  la  Vegau.  Vianna,  1  Barn.  &  Adolph.  284  ;  De 
Couche  V.  Savatier,  3  Johns.  Ch.  R.  190 ;  Lincoln  v.  Battelle,  6  Wend. 
R.  475 ;  Gulick  v.  Lodes,  Green's  New  Jersey  Rep.  68  ;  3  Burge,  Com. 
on  Col.  and  For.  Law,  p.  883.  The  statute  of  Georgia  is,  '  that  actions 
of  debt  on  judgments  obtained  in  Courts,  other  than  the  Courts  of  this  State, 
must  be  brought  within  five  years  after  the  judgment  obtained.'  It  would 
be  strange,  if  in  the  now  well  understood  rights  of  nations  to  organize  their 
judicial  tribunals  according  to  their  notions  of  policy,  it  should  be  conceded 
to  them  in  every  other  respect,  than  that  of  prescribing  the  time  within 
which  suits  shall  be  litigated  in  their  Courts.  Prescription  is  a  thing  of 
policy,  growing  oui  of  the  experience  of  its  necessity  ;  and  the  limt;, 
after  which  suits  or  actions  shall  be  barred,  has  been,  from  a  remote  an- 
tiquity, fixed  by  every  nation,  in  virtue  of  that  sovereignty,  by  which  it 
exercises  its  legislation  for  all  persons  and  property  within  its  jurisdiction. 
This  being  the  foundation  of  the  right  to  pass  statutes  of  prescription  or 
limitation,  may  not  our  States,  under  our  system,  exercise  this  right  in 
virtue  of  their  sovereignty  1  Or  is  it  to  be  conceded  to  them  in  every  other 
particular,  than  that  of  barring  the  remedy  upon  judgments  of  other  States 
by  the  lapse  of  time  ?  The  States  use  this  right  upon  judgments  rendered 
in  their  own  Courts  ;  and  the  common  law  raises  the  presumption  of  the 
payment  of  a  judgment  after  the  lapse  of  twenty  years.  May  they  not 
then  limit  the  time  for  remedies  upon  the  judgments  of  other  States,  and 
alter  the  common  law  by  statute,  fixing  a  less  or  larger  time  for  such  pre- 
sumption, and  altogether  barring  suits  upon  such  judgments,  if  they  shall 
not  be  brought  within  the  time  stated  in  the  statute  ?  It  certainly  will  not 
be  contended,  that  judgment  creditors  of  other  States  shall  be  put  upon  a 
better  footing,  in  regard  to  a  State's  right  to  legislate  in  this  particular, 
than  the  judgment  creditors  of  the  State  in  which  the  judgment  was  ob- 
tained. And  if  this  right  so  exists,  may  it  not  be  exercised  by  a  State's 
restraining  the  remedy  upon  the  judgment  of  another  State,  leaving  those 
of  its  own  Courts  unaffected  by  a  statute  of  limitations,  but  subject  to  the 
common-law  presumption  of  payment  after  the  lapse  of  twenty  years.     In 


CH.  XIV.]  JURISDICTION   AND    REMEDIES.  971 

is  strictly  a  mere  bar  to  the  remedy,  and  cases,  where  it 
goes  directly  to  the  extinguishment  of  the  debt,  claim, 
or  right.  Where  it  professes  to  dispose  of  the  latter,  it 
would  seem  difficult  to  say,  that  a  mere  removal  to  ano- 
ther country  can  revive  an  extinguished  debt,  claim,  or 
right,  or  change  the  positive  title  of  property  acquired 
and  perfected  under  the  local  law  of  the  place,  where 
the  parties  and  property  are  situated.^  But  where  it 
professes  to  deny,  or  control,  or  extinguish  the  remedy 
only,  other  considerations  may  properly  apply.  It  has, 
indeed,  been  decided  upon  a  recent  occasion,  in  one  of 
the  American  Courts,  that  in  cases  falling  within  the 
latter  predicament,  it  will  make  no  difference,  whether 
both  parties  have  remained  domiciled  in  the  same  coun- 
try where  the  original  cause  of  action  arose,  during  the 
whole  period  required  by  the  local  statute  of  limitations 
to  bar  the  remedy  thereon,  or  whether  they  have 
changed  their  domicil  after  it  has  begun  to  run.^  But 
the  reasoning  which  thus  repels  any  such  distinction,  is 
not  so  clear  or  decisive  as  has  been  supposed.     Every 


other  words,  may  not  the  law  of  a  State  fix  different  times  for  barring  the 
remedy  in  a  suit  upon  a  judgment  of  another  State,  and  for  those  of  its  own 
tribunals?  We  use  this  mode  of  argument  to  show  the  unreasonableness 
of  a  contrary  doctrine.  But  the  point  might  have  been  shortly  dismissed 
with  this  safe  declaration,  that  there  is  no  direct  constitutional  inhibition 
upon  the  States,  nor  any  clause  in  the  Constitution,  from  which  it  can  be 
even  plausibly  inferred,  that  the  States  may  not  legislate  upon  the  remedy 
in  suits  upon  the  judgments  of  other  States,  exclusive  of  all  interference 
with  their  merits.  It  being  settled  that  the  statute  of  limitations  may  bar 
recoveries  upon  foreign  judgments ;  that  the  effect  intended  to  be  given 
under  our  Constitution  to  judgments  is,  that  they  are  conclusive  only  as 
regards  the  merits  ;  the  common-law  principle  then  applies  to  suits  upon 
them,  that  they  must  be  brought  within  the  period  prescribed  by  the  local 
law,  the  lex  fori,  or  the  suit  will  be  barred." 

1  Donr.  Lippmann,  5  Clark  &  Finnell.  R.  1,  15,  16,  17. 

2  Bulger  u.  Roche,  11  Pick.  R.  36. 


972  CONFLICT    OF   LAWS.  [CH.  XIV. 

nation  has  a  complete  and  exclusive  sovereignty  to 
enact  laws,  which  shall  limit  all  rights  of  action  to  cer- 
tain prescribed  periods  within  its  own  tribunals ;  and  to 
declare,  that  after  that  period  all  rights  of  action  shall 
be  extinguished ;  and  if  the  parties  remain  domiciled 
within  the  territorial  jurisdiction  during  that  whole 
period,  the  law  ij^so  facto  operates  on  the  case,  and  the 
rights  of  action  are  completely  extinguished  there. 
But  the  same  doctrine  is  not  true,  or  rather  may  not 
be  true,  where  before  the  prescribed  period  has  arrived, 
one  or  both  of  the  parties  have  changed  their  national 
domicil ;  for  by  such  change  they  have  ceased  to  be 
under  the  exclusive  dominion  of  the  nation,  whose  sta- 
tute of  limitations  has  begun  to  operate  upon  their 
rights  of  action,  but  has  not  as  yet  extinguished  them. 
The  laws  thereof  can  no  longer  operate  on  those  rights, 
at  least  not  operate,  except  within  the  territorial  limits 
of  the  nation.  Elsewhere  they  can  be  deemed  as 
having  only  an  inchoate  and  imperfect  effect ;  and  the 
change  of  domicil  suspends  their  power  to  extinguish 
the  rights  of  action  in  future,  since  they  can  have  no 
binding  extra-territorial  force.  It  is  no  answer  to  say, 
that  when  once  the  statute  of  limitations  begins  to  run, 
no  subsequent  impediment  stops  it  from  continuing  to 
run.  That  is  true  in  the  nation,  whose  laws  contain 
such  provisions,  or  inculcate  such  a  doctrine.  But  no 
other  nation  is  bound  to  give  effect  to  such  provisions 
or  to  such  a  doctrine.  They  are  strictly  intra-territorial 
regulations  and  interpretations  of  the  Lex  fori,  which 
other  nations  are  not  bound  to  observe  or  keep.  While 
the  parties  were  domiciled  there,  the  statute  of  limita- 
tions continued  to  run  against  them ;  but  it  had  not  then 
extinguished  any  rights  of  action.  When  they  changed 
their  domicil,  the  statute,  as  to  them  or  their  rights  of 


CH.   XIV.]  JURISDICTION   AND   REMEDIES.  973 

action,  in  respect  to  personal  property,  or  personal 
claims,  was  no  longer  operative  or  obligatory  ;  but  the 
statutes  only  of  their  new  domicil.  It  would,  or  at 
least  might,  then,  require  a  very  different  consideration, 
where  the  local  law  had  before  the  change  of  domicil 
actually  extinguished  all  rights  of  action ;  for  then  to 
revive  them  is  to  create  new  rights,  and  not  to  enforce 
old  rights  subsisting  at  the  time  of  the  removal.^ 


1  In  Bulger  f.  Roche,  11  Pick.  R.  36,  the  very  case  arose  of  a  cause  of 
action  extinguished  by  the  local  law  of  the  country,  (Nova  Scotia,)  where 
both  parties  resided  during  the  whole  period  of  the  running  of  the  statute 
of  limitations  ;  and  the  Supreme  Court  of  Massachusetts  held,  that  the 
right  of  action  after  a  change  of  domicil  of  the  defendant  by  a  removal  to 
Massachusetts  was  not  thereby  extinguished  in  the  Slate  tribunals  ;  but 
might  be  pursued  within  the  period  prescribed  by  the  statute  of  limitations 
of  Massachusetts.  On  that  occasion  Mr.  Chief  Justice  Shaw  in  delivering 
the  opinion  of  the  Court  said  ;  "The facts,  so  far  as  they  are  material,  are 
these;  that  the  cause  of  action  accrued  in  1821,  more  than  six  years  be- 
fore the  comtnencement  of  this  action,  that  the  plaintiff  and  defendant 
were  both  domiciled  at  Halifax  in  Nova  Scotia,  and  were  subjects  of  the 
King  of  Great  Britain,  and  that  by  the  law  of  that  country,  an  action  of 
assumpsit  is  barred  in  six  years.  It  is  stated  in  the  replication,  and  ad- 
milted  by  the  rejoinder,  that  the  plaintiff  came  into  this  commonwealth,  for 
the  first  time,  in  1829,  and  that  the  action  was  commenced  within  six 
years  from  that  time.  That  the  law  of  limitations  of  a  foreign  country 
cannot  of  itself  be  pleaded  as  a  bar  to  an  action  in  this  commonwealth, 
seems  conceded  ;  and  is  indeed  too  well  settled  by  authority  to  be  drawn  in 
question.  Byrne  v.  Crowninshield,  17  Mass.  R.  55.  The  authorities 
both  from  the  civil  and  the  common  law  concur  in  fixing  the  rule,  that  the 
nature,  validity,  and  construction  of  contracts,  is  to  be  determined  by  the 
law  of  the  place,  where  the  contract  is  made  ;  and  that  all  remedies  for 
enforcing  such  contracts  are  regulated  by  the  law  of  the  place,  where 
such  remedies  are  pursued.  Whether  the  law  of  prescription,  or  statute  of 
limitation,  which  takes  away  every  legal  mode  of  recovering  a  debt,  shall 
be  considered  as  affecting  the  contract,  like  payment,  release,  or  judgment, 
which  in  effect  extinguish  the  contract,  or  whether  they  are  to  be  consi- 
dered as  affecting  the  remedy  only  by  determining  the  time,  within  which 
a  particular  mode  of  enforcing  it  shall  be  pursued,  were  it  an  open  ques- 
tion, might  be  one  of  some  difficulty.  It  was  ably  discussed  upon  general 
principles  in  a  late  case  (Le  Roy  v.  Crowninshield,  2  Mason's  II.  151)  be- 

CONFL.  82 


974  CONFLICT    OF   LAWS.  [CH.    XIV. 

§  583.  What  has  been  thus  far  stated  on  this  head 
may  be  concluded  by  quoting  a  passage  from  John 
Yoet,  the  correctness  and  force  of  which,  in  point  of 
principle,  are  submitted  to  the  consideration  of  the 
reader.  Quod,  si  restitutio  concedenda  sit  non  ex  causa, 
quce  ijjsiim  negotium  ah  initio  comitabatur,  (iiti  comitatur 
metiis,  dolus,  error)  sed  ex  ed,  qum  ijost  supervenit,  (qitalis 
est   Usiicapio  verum,  aut  Prwseriptio  jiiriiim  ct  actionum. 


fore  the  Circuit  Court,  in  which  however  it  was  fully  conceded  by  the 
learned  judge,  upon  a  full  consideration  and  review  of  all  the  authorities, 
that  it  is  now  considered  to  be  a  settled  question.  A  doubt  was  intimated 
in  that  case,  whether,  if  the  parties  had  remained  subjects  of  the  foreign 
country  until  the  term  of  limitation  had  expired,  so  that  the  plaintiff's  re- 
medy would  have  been  extinguished  there,  such  a  state  of  facts  would  not 
have  presented  a  stronger  case,  and  one  of  more  serious  difficulty.  Such 
was  the  case  in  the  present  instance.  But  we  think  it  sufficient  to  advert 
to  a  well  settled  rule,  in  the  construction  of  the  statute  of  limitations,  to 
show,  that  this  circumstance  can  make  no  difference.  The  rule  is  this  ; 
that  where  the  statute  has  begun  to  run,  it  will  continue  to  run  notwith- 
standing the  intervention  of  any  impediment,  which,  if  it  had  existed,  when 
the  cause  of  action  accrued,  would  have  prevented  the  operation  of  the 
statute.  For  instance,  if  this  action  accrued  in  Nova  Scotia  in  1821,  and 
the  plaintiff  or  defendant  had  left  that  country  in  1825  within  six  years,  in 
1828,  after  the  lapse  of  six  years,  the  action  would  be  as  effectually  bar- 
red, and  the  remedy  extinguished  there,  as  if  both  had  continued  to  reside 
in  Halifax  down  to  the  same  period.  So  that  when  the  parties  met  here 
in  1829,  so  far  as  the  laws  of  that  country,  by  taking  away  all  legal  re- 
medy, could  affect  it,  the  debt  was  extinguished,  and  that  equally,  whether 
they  had  both  remained  under  the  jurisdiction  of  those  laws,  till  the  time 
of  limitation  had  elapsed,  or  whether  either  or  both  had  previously  left  it. 
The  authorities  referred  to,  therefore,  must  be  held  applicable  to  a  case  where 
both  parties  were  subject  to  the  jurisdiction  of  a  foreign  state,  when  the  bar 
arising  from  its  statute  of  limitations  attached.  The  same  conclusion  re- 
sults from  the  reason,  upon  which  these  cases  proceed,  which  is,  that  sta- 
tutes of  limitation  affect  only  the  time,  within  which  a  legal  remedy  must 
be  pursued,  and  do  not  affect  the  nature,  validity,  or  construction  of  the 
contract.  This  reason,  whether  well  founded  or  not,  applies  equally  to 
cases,  where  the  term  of  limitation  has  elapsed,  when  the  parties  leave  the 
foreign  state,  as  to  those  where  it  has  only  begun  to  run  before  they  have 
left  the  state,  and  elapses  afterwards."  But  see  Don  v.  Lippraann, 
5  Clark  &  Finnell.  R.  1,  15,  IG,  17. 


CH.    XIV.]  JURISDICTION   AND    REMEDIES.  975 

propter  absentiam  non  intcrriipta)  ita  generaliter  definiendmn 
existimo,  illiiis  loci  leges  in  restitidione  faciendd  aitendendas 
esse,  secundum  cvjiis  loci  leges  impleta  siimmojiire  fuit  per 
ahscntiam  Usucapio  vel  Prccscripiio.  Quid  enim,  olsccro, 
aid  justius  end  ccrpdus,  quam  id  ex  eorundcm  legislcdorum 
prcescriptio  remedium  adversus  Icesionem  indulgecdur,  ex 
quorum  prcescnptio  et  siimmo  Jure  primitus  Iccsio  ncdafidt? 
Quihus  consequens  est,  id  si  immohilium  rcrum  Usucapio 
impleta  sit,  scrventur  in  resiitulione  faciendd  jura  regionis, 
in  qiid  immoUles  res  sitce  sunt :  adeoque,  id  in  amittendo,  sic 
et  in  recuperando  dominio,  regantur  immolilia  ex  situs  sid 
lege,  juxta  vulgatam  regulam  in  mcderid  stcdutarid.  Sin 
moUlia  usucapta  fuerint,  in  resiitutione  magis  erit,ut  serven- 
tur  leges  domicilii  ejus,  qui  per  iisucapionem  dominium  ami- 
serat ;  id  ita  mohilia,  quce  censentur  illic  esse,  uhi  domicilium 
fovet  dominus,  ex  lege  domicilii  redeant,  idi  fnerant  amissa. 
jSed  si  actiones  in  personam  temporis  lapsu,  per  ahsentiam 
contigente,  extinctco  sint ;  proJ)cd)ilius  fuerit,  in  illis  restituen- 
dis  oh  justam  ahsentice  causam  spectandum  esse  jus  loci,  in 
quo  dehitor  commoratur,  contra  quem  restitutio  petitur :  cum 
etiam  ex  istius  loci  lege  Prcescriptio  implenda  fuerit} 


1  J.  Voet,  ad  Pand.  Lib.  4,  tit.   1,  §  29,  p.  241  ;  Henry  on  Foreign 
Law,  p.  56,  59. 


976  CONFLICT    OF   LAWS.  [CH.    XV. 


CHAPTER  XV. 


FOREIGN   JUDGMENTS. 


§  584.  We  come  in  the  next  place  to  the  consider- 
ation of  foreign  judgaients,  or  of  the  force  and  effect  of 
foreign  sentences,  Exceptio  rei  jiidicatce.  As  to  the  ef- 
fect to  be  given  to  foreign  judgments,  there  has  been 
much  diversity  of  practice,  as  well  as  of  opinion,  among 
jurists  and  nations.  We  do  not  speak  here  of  cases, 
where  the  point  was,  whether  the  court  pronouncing  the 
judgment,  had  jurisdiction,  or  not;  but,  assuming  the 
jurisdiction  to  be  unquestionable,  what  force  and  effect 
ought  to  be  given  to  such  judgment.  Ought  it  to  be 
held  conclusive  upon  the  parties  ?  Or  ought  it  to  be 
open  to  impeachment  by  new  evidence,  or  to  be  re- 
examined upon  the  original  merits  ?  The  subject  may 
be  considered  in  two  general  aspects  ;  first,  in  regard  to 
judgments  in  7^em  ;  and  secondly,  in  regard  to  judgments 
i?t  personam. 


1  Burgundus  divides  judgments  (sententiae)  into  three  classes ;  (1.,  in 
rem;  (2.)  in  personam;  (3.)  mixed  in  rem  et  in  personam.  "Omnium 
condemnationum  summa  divisio,  pariter  in  tria  genera  deducitur.  Aut 
enim  in  rem,  aut  in  personam,  aut  in  utramque  concipiuntur.  In  rem, 
quoties  alicui  res  asseritur,  hoc  est  ejus  esse  dicitur,  vel  jure  creditoris,  aut 
alio  modo  possidenda  datur.  In  personam,  si  condemnetur  ad  aliquid  dan- 
dum  aut  patiendum,  faciendum  aut  non  faciendum,  vel  si  personje  slatum 
afficiat.  In  utramque,  si  et  res  et  personae  simul  in  condemnationem  ve- 
niant."  Burgundus,  Tract.  3,  n.  1,  2,  p.  84,  85  ;  1  Boullenois,  Observ. 
25,  p.  602.  See  the  learned  opinion  of  Mr.  Vice-Chancellor  Bruce,  in 
Barrs  v.  Jackson,  1  Y.  &  Coll.  585,  as  to  what  domestic  judgments  are 
conclusive  or  not. 


CH.  XV.]  FOREIGN   JUDGMENTS. 


977 


heads ;  first,  where  the  judgment  is  set  up  by  way  of 
defence  to  a  suit  in  a  foreign  tribunal ;  and,  secondly, 
where  the  judgment  is  sought  to  be  enforced  in  a  foreign 
tribunal  against  the  original  defendant,  or  his  property  ; 
and,  thirdly,  where  the  judgment  is  between  subjects,  or 
between  foreigners,  or  between  foreigners  and  subjects. 
These  divisions  will,  in  some  degree,  require  a  separate 
examination.^ 

§  585.  Vattel  has  said  with  great  force,  that  it  is  the 
province  of  every  sovereignty  to  administer  justice  in 
all  places  within  its  own  territory  and  under  its  own 
jurisdiction,  to  take  cognizance  of  crimes  committed 
there,  and   of  the    controversies,  that  arise  within  it. 
Other  nations  ought  to  respect  this  right ;  and,  as  the 
administration  of  justice  necessarily  requires,  that  every 
definitive  sentence,  regularly  pronounced,  be  esteemed 
just  and  executed  as  such  ;  when  once  a  cause,  in  which 
foreigners  are  interested,  has  been  decided  in  form,  the 
sovereign  of  the   defendants  ought  not  to  hear  their 
complaints.     To   undertake    to  examine  the  justice  of 
a  definitive  sentence  is  an  attack  upon  the  jurisdiction  of 
the  sovereign,  who  has  passed  it.^     Hence  Vattel  de- 
duces the  general  rule,  that,  in  consequence  of  this  right 
of  jurisdiction,  the  decision,  made  by  the  judge  of  the 
place  within  the  extent  of  his  authority,  ought  to  be 
respected,  and  to  take  effect  even  in  foreign  countries.^ 
§  586.  Reasonable  as  this  doctrine  seems  to  be,  it  is 
difficult  to  affirm,  that  it  has  obtained  the  general  assent 
of  civilized  nations  in  modern  times  in  their  intercourse 
with  each  other.     The   support,  which  it  has  received 


1  See  on  this  subject,  3  Burge,  Comm.  on  Col.  and  For. Law,  Pt.  2,  ch. 
24,  p.  1014  to  p.  1080.  See  also  2  Smith,  Lead.  Cas.  436,  note,  2d. 
edit. 

2  Vattel,  B.  2,  ch.  7,  ^  84.  3  Id.  §  85. 

82* 


978  CONFLICT    OF   LAWS.  [CH.  XV. 

from  the  common  law,  is  far  more  extensive  and  uni- 
form, than  it  has  received  in  the  jurisprudence  of  conti- 
nental Europe.  In  order,  however,  to  found  a  proper 
ground  of  recognition  of  any  foreign  judgment  in  ano- 
ther country,  it  is  indispensable  to  establish,  that  the 
court  pronouncing  judgment  should  have  a  lawful  juris- 
diction over  the  cause,  over  the  thing,  and  over  the  par- 
ties.^ If  the  jurisdiction  fails  as  to  either,  it  is  (as  we 
have  already  seen)  treated  as  a  mere  nullity,  having  no 
obligation,  and  entitled  to  no  respect  beyond  the  do- 
mestic tribunals.^  And  this  is  equally  true,  whether 
the  proceedings  be  in  rem  or  in  ijersonam,  or  in  ?'em  and 
also  in  personam.^ 

§  587.  This  subject  was  a  good  deal  considered  in  a 
celebrated  case,  (a  proceeding  in  rem,)  before  the  Su- 
preme Court  of  the  United  States,  where  the  principal 
point  was,  whether  there  had  been  a  change  of  the 
ownership  of  the  property  by  the  sentence  of  a  foreign 
court  in  a  suit  there  pending  in  rem.  Upon  that  occa- 
sion Mr.  Chief  Justice  Marshall,  in  delivering  the  opi- 
nion of  the  Court,  used  the  following  language.  "  The 
power  of  the  [foreign]  court,  then,  is,  of  necessity,  exa- 
minable to  a  certain  extent  by  that  tribunal,  which  is 
compelled  to  decide,  whether  its  sentence  has  changed 


1  See  1  BouUenois,  Observ.  25,  p.  618,  619,  620.  See  S.  P.  Ferguson 
V.  Mahon,  11  Adolph.  &  Ell.  179,  182,  183. 

2  Ante,  ^  539,  546,  547  ;  Buchanan  v.  Rucker,  9  East,  R.  192 ;  Bissell 
V.  Briggs,  5  Mass.  R.  4G2;  Shumway  v.  Stillman,  6  Wend.  R.  447;  Don 
V.  Lippmann,  5  Clark  &  Finnell.  1,  20,  21  ;  4  Cowen,  R.  524,  n.  ;  1  Star- 
kie  on  Evid.  P.  2,  ^  68,  p.  214  ;  Henry  on  Foreign  Law,  18,  n  ;  Id.  23  ; 
Id.  73  ;  Cavan  v.  Stuart,  1  Stark.  525  ;  Middlesex  Bank  v.  Butman,  29 
Maine,  R.  19  ;  Noyes  v.  Butler,  6  Barbour,  613  ;  Hall  v.  Williams,  6  Pick 
232;  Wood  V.  Tremere,  6  Pick.  R.  354;  S.  P.  11  Adolph.  &  Ellis,  179, 
182,  183. 

3  Ibid. 


CH.    XV.]  FOREIGN   JUDGMENTS.  979 

the  right  of  propertj^  The  power,  under  which  it  acts, 
must  be  looked  into ;  and  its  authority  to  decide  ques- 
tions, which  it  professes  to  decide,  must  be  considered. 

§  588.  "  But  although  the  general  power,  by  which 
a  court  takes  jurisdiction  of  causes,  must  be  inspected, 
in  order  to  determine,  whether  it  may  rightfully  do, 
what  it  professes  to  do,  it  is  still  a  question  of  serious 
difiiculty ;  whether  the  situation  of  the  particular  thing 
on  which  the  sentence  has  passed,  may  be  inquired 
into  for  the  purpose  of  deciding,  whether  that  thing 
was  in  a  state,  which  subjected  it  to  the  jurisdiction  of 
the  court,  passing  the  sentence.  For  example ;  in 
every  case  of  a  foreign  sentence  condemning  a  vessel 
as  prize  of  war,  the  authority  of  the  tribunal  to  act  as 
a  prize  court  must  be  examinable.  Is  the  question, 
whether  the  vessel  condemned  was  in  a  situation  to 
subject  her  to  the  jurisdiction  of  that  court,  also  exami- 
nable? This  question,  in  the  opinion  of  the  Court, 
must  be  answered  in  the  affirmative. 

§  589.  "Upon  principle,  it  would  seem,  that  the 
operation  of  every  judgment  must  depend  on  the  power 
of  the  court  to  render  that  judgment ;  or,  in  other 
words,  on  its  jurisdiction  over  the  subject-matter  which 
it  has  determined.  In  some  cases,  that  jurisdiction 
unquestionably  depends,  as  well  on  the  state  of  the 
thing,  as  on  the  constitution  of  the  court.  If  by  any 
means  whatever  a  prize  court  should  be  induced  to  con- 
demn, as  prize  of  war,  a  vessel,  which  was  never  cap- 
tured, it  could  not  be  contended,  that  this  condemnation 
operated  a  change  of  property.  Upon  principle,  then, 
it  would  seem,  that,  to  a  certain  extent,  the  capacity  of 
the  court  to  act  upon  the  thing  condemned,  arising 
from  its  being  within,  or  without  their  jurisdiction,  as 
well  as  the  constitution  of  the  court,  may  be  considered 


980  CONFLICT    OF    LAWS.  [CH.   XV. 

by  that  tribunal,  which  is  to  decide  on  the  effect  of  the 
sentence. 

§  590.  "  Passing  from  principle  to  authority,  we  find, 
that  in  the  courts  of  England,  whose  decisions  are  par- 
ticularly mentioned,  because  we  are  best  acquainted 
with  them,  and  because,  as  is  believed,  they  give  to  fo- 
reign sentences  as  full  effect  as  are  given  to  them  in  any 
part  of  the  civilized  world,  the  position,  that  the  sen- 
tence of  a  foreign  court  is  conclusive  with  respect  to 
what  it  professes  to  decide,  is  uniformly  qualified  with 
the  limitation,  that  it  has,  in  the  given  case,  jurisdiction 
of  the  subject-matter."  ^ 

§  591.  Let  us  now  consider  the  operation  of  judg- 
ments in  the  different  classes  of  cases  which  have  been 
already  adverted  to.  And  first,  in  relation  to  judgments 
in  rem.  If  the  matter  in  controversy  is  land,  or  other 
immovable  property,  the  judgment  pronounced  in  the 
forum  rei  sitce  is  held  to  be  of  universal  obligation,  as  to 
all  the  matters  of  right  and  title,  which  it  professes  to 
decide  in  relation  thereto."  This  results  from  the  very 
nature  of  the  case  ;  for  no  other  court  can  have  a  compe- 
tent jurisdiction  to  inquire  into,  or  settle  such  right  or 
title.  By  the  general  consent  of  nations,  therefore,  in 
cases  of  immovables,  the  judgment  of  i\iQ  forum  rei  sitce 
is  held  absolutely  conclusive.^  ImmoUUa  ejus  jurisdic- 
tionis  esse  repiitantiir,  uhi  sita  sunt}  On  the  other  hand,  a 
judgment  in  any  foreign  country,  touching  such  immo- 
vables, will  be  held  of  no  obligation.     John  Voet  is  ex- 


1  Rose  V.  Himely,  4  Cranch,  269,  270. 

2  Ante,  §  532,  545,  551. 

^  1  Boullenois,  Observ.  25,  p.  G18,  G19,  623. 

4  Id.  p.  619;  1  Hertii.  Opera,  De  Collis,  ^  4,  n.  73,  p.  153,  154,  edit. 
1737  ;  Id.  p.  216,  edit.  1716.  See  also  J.  Voet,  ad  Pand.  Tom.  1,  Lib. 
1,  tit.  P%  2,  n.  11,  p.  44,  and  ante,  ^  362,  note  3. 


CH.  XV.]  FOREIGN   JUDGMENTS.  981 

plicit  on  this  point.  "  Licet  aidem  rcgulariter  judex  re- 
qiiisitus  non  cognoscat  dejustitidsententice  per  alterumjudi- 
cem  latw,  nee  cam  ad  examen  penitius  revocet,  sed  pro  jiis- 
iitid  ejus  ac  ccquUate  ^;rct'5!(?««/.  Tamen  si  animadvertaty 
earn  directo  contra  sui  territorii  statida  latam  esse  circa  res 
immohiles,  in  suo  territorio  sitas,  eandem  non  exseqidtur  ;  idi 
nee,  si  alias  ahsqiie  prolixd  caiisce  cognitione  constet,  senten- 
tiam  nidlam  esse} 

§  592.  The  same  principle  is  applied  to  all  other 
cases  of  proceedings  in  rem,  against  movable  property, 
within  the  jurisdiction  of  the  court  pronouncing  the 
judgment.^  Whatever  the  court  settles  as  to  the  right 
or  title,  or  whatever  disposition  it  makes  of  the  pro- 
perty by  sale,  revendication,  transfer,  or  other  act,  will 
be  held  valid  in  every  other  country,  where  the  same 
question  comes  directly  or  indirectly  in  judgment  before 
any  other  foreign  tribunal.  This  is  very  familiarly 
known  in  the  cases  of  proceedings  in  rem  in  foreign 
courts  of  Admiralty,  whether  they  are  causes  of  prize, 
or  of  bottomry,  or  of  salvage,  or  of  forfeiture,  or  of  any, 
the  like  nature,  over  which  such  courts  have  a  rightful 
jurisdiction,  founded  on  the  actual  or  constructive  pos- 
session of  the  subject-matter  {Bes.y     The  same  rule  is 


1  J.  Voet,  ad  Pand.  Tom.  2,  Lib.  42,  lit.  1,  n,  41,  p.  788. 

2  See  Karnes  on  Equity,  B.  3,  ch.  8,  ^  4  ;  French  v.  Hall,  9  N.  Hamp. 
R.  137. 

3  Croudson  v.  Leonard,  4  Cranch,  434;  Whitney  v.  Walsh,  1  Cush. 
29  ;  The  Mary  Anne,  Ware,  R.  104  ;  Barrow  v.  West,  23  Pick.  270  ; 
Monroe  v.  Douglass,  4  Sandf.  Ch.  R.  179  ;  Williams  v.  Armroyd,  7 
Cranch,  R.  423  ;  Rose  v.  Himely,  4  Cranch,  241  ;  Hudson  r.  Guesiier, 
4  Cranch,  293;  The  Mary,  9  Cranch,  126,  142  to  146  ;  1  Starkie  on  Evi- 
dence, Pi.  2,  ^  81,  p.  238,  &c.  ;  Marshall  on  Insur.  B.  1,  ch.  9,  ^  6,  p. 
412,435;  Cases  cited  in  4  Cowen,  R.  520,  n.  3  ;  Grant  v.  McLachlin, 
4  Johns.  R.  31  ;  Peters  v.  The  Warren  Insur.  Co.  3  Sumner,  Rep.  389  ; 
S.  C.   1  Chand.  Law  Reporter,  222  ;    Blad  v.  Bamfield,  3  Swanst.  R. 


982  CONFLICT    OF   LAWS.  [CH.   XV. 

applied  to  other  courts  proceeding  in  rem,  such  as  to  the 
Court  of  Exchequer  in  England,  and  to  other  courts 
exercising  a  like  jurisdiction  in  rem  upon  seizures.^ 
And  in  cases  of  this  sort  it  is  wholly  immaterial  whether 
the  judgment  be  of  acquittal  or  of  condemnation.  In 
both  cases  it  is  equally  conclusive.^  But  the  doctrine, 
however,  is  always  to  be  understood  with  this  limita- 
tion, that  the  judgment  has  been  obtained  lonci  fide  and 
without  fraud  \  for  if  fraud  has  intervened,  it  will  doubt- 
less avoid  the  force  and  validity  of  the  sentence.^  So  it 
must  appear  that  there  have  been  regular  proceedings 
to  found  the  judgment  or  decree ;  and  that  the  parties 
in  interest  in  rem  have  had  notice,  or  an  opportunity  to 
appear  and  defend  their  interests,  either  personally  or 
by  their  proper  representatives,  before  it  w^as  pro- 
nounced ;  for  the  common  justice  of  all  nations  requires 
that  no  condemnation  should  be  pronounced  before  the 
party  has  an  opportunity  to  be  heard.^ 

§  592  a.  Proceedings  also  by  creditors  against  the 
personal  property  of  their  debtor  in  the  hands  of  third 
persons,  or  against  debts  due  to  him  by  such  third  per- 


604,  605  ;  Broadstreet  v.  Neptune  Insur.  Co.  2  Chand.  Law  Report.  262, 
264,  265  ;  S.  C.  3  Sumner,  Rep.  600;  Magoun  v.  New  England  Ins.  Co. 
1  Story,  R.  157  ;  S.  C.  3  Chand.  Law  Rep.  127,  130,  131. 

1  Ibid.  And  Starkie  on  Evid.  p.  2,  <5»  67,  80,  81,  p.  336  ;  Gelston  ?;.Hoyt, 
3  Wheaton,  R.  246  ;  Williams  v.  Armroyd,  7  Crancli,  423. 

2  Ibid. 

3  See  Post,  §  597  ;  Duchess  of  Kingston's  Case,   11  State  Trials,  p. 

261,  262  ;  S.  C.  20  Howell,  State  Trials,  p.  355  ;  Id.  p.  538,  the  opinion 
of  the  Judges  ;  Bradstreet  v.  The  Neptune  Insur.  Co.  2  Chand.  Law  Rep. 

262,  264,  265  ;  S.  C.  3  Sumner,  R.  600  ;  Magoun  v.  The  N.  England  In- 
sur. Co.  1  Story,  R.  157;  S.  C.  3  Chand.  Law  Report.  127,  130,  131. 

4  Sawyer  v.  Maine  Fire  and  Mar.  Ins.  Co.  12  Mass.  R.  291  ;  Brad- 
street  V.  The  Neptune  Insur.  Co.  3  Sumner,  600  ;  S.  C.  2  Chand.  Law 
Reporter,  263  ;  Magoun,  v.  N.  England  Insur.  Co.  1  Story,  R.  157  ;  S. 
C.  3  Chand.  Law  Reporter,  127,  130. 


CH.   XV.]  FOREIGN    JUDGMENTS.  983 

sons,  (commonly  called  the  process  of  foreign  attach- 
ment, or  garnishment,  or  trustee  process,)  are  also 
treated  as  in  some  sense  }>roceedings  in  rem,  and  are 
deemed  entitled  to  the  same  consideration.^  But  in 
this  last  class  of  cases  we  are  especially  to  bear  in  mind, 
that  to  make  any  judgment  effectual  the  court  must 
possess  and  exercise  a  rightful  jurisdiction  over  the  Res, 
and  also  over  the  person,  at  least  so  far  as  the  Pies  is 
concerned ;  otherwise  it  will  be  disregarded.  And  if 
the  jurisdiction  over  the  lies  be  well  founded,  but  not 
over  the  person,  except  as  to  the  Ties,  the  judgment  will 
not  be  either  conclusive  or  binding  upon  the  party  in 
'personam,  although  it  may  be  in  rem.~ 


1  See  cases  cited,  in  4  Cowen,  R.  520,  521,  n.  ;  Ante,  ^549;  Holmes  i-. 
Remsen,  20  Johns.  R.  229  ;  Hull  v.  Blalie,  13  Mass.  R.  153  ;  McDaniel 
V.  Hughes,  3  East,  R.  366  ;  Philips  v.  Hunter,  2  H.  Black.  402,  410. 

2  Ante,  549,  and  note  ;  Bissell  v.  Briggs,  9  Mass.  R.  468.  See  Ocean 
Ins.  Co.  V.  Portsmouth  Marine  Railway  Co.  3  Mete.  420  ;  Danforlh  v. 
Penny,  Id.  564.  See  also,  3  Burge,  Comm.  on  Col.  and  For.  Law,  Pt.  2, 
ch.  24,  p.  1014  to  1019.  —  Some  very  important  questions  may  arise  in 
cases  of  foreign  attachment  or  garnishment.  Suppose  A.,  a  creditor  of  B., 
should  bring  a  suit  by  foreign  attachment  or  garnishment  in  a  foreign 
country  against  C.  as  garnishee  of  the  property  or  credits  of  B.,  will  a 
judgment  rendered  in  that  suit  conclude  D.,  who  claims  the  same  property 
or  credit  by  a  prior  title,  in  another  suit  therefor  in  the  same  country,  or 
in  another  country  ?  Will  it  make  any  difference,  that  A.,  before  obtain- 
ing his  judgment,  had  notice  of  D.'s  claim  and  right?  Will  it  make  any 
difference,  that  D.  might  by  the  lex  fori  have  intervened  in  the  first  suit  to 
vindicate  his  title,  and  to  support  it,  if  he  was  not  domiciled  in  the  coun- 
try at  the  time,  although  he  had  notice  of  the  same  suit  ?  Another  case 
may  be  put  involving  similar  considerations.  Suppose  a  suit  is  brought  in 
a  foreign  country  by  A.  against  B.  to  recover  property  there  situate,  to 
which  C,  who  is  domiciled  in  a  foreign  country,  also  clainns  title  ;  and  by 
the  law  of  the  country  where  the  suit  is  brought,  C.  might  intervene  for 
his  title  ;  but  he  does  not,  although  he  has  notice  of  the  suit.  If  A.  obtains 
judgiT\ent  in  the  suit  for  the  property  against  B.,  will  that  judgment  bind 
C.  in  the  courts  of  that  country,  in  a  subsequent  suit  brought  there  by  C. 
against  A.  for  the  same  property  ?     If  it  will  bind  him  there,  will  it  bind 


984  CONFLICT    OF   LAWS.  [CH.   XV. 

§  593.  In  all  these  cases  the  same  principle  prevails, 
that  the  judgment  acting  in  rem,  shall  be  held  conclu- 
sive upon  the  title  and  transfer  and  disposition  of  the 
property  itself,  in  whatever  place  the  same  property 
may  afterwards  be  found,  and  by  whomsoever  the  latter 
may  be  questioned  ;  and  whether  it  be  directly  or  inci- 
dentally brought  in  question.  But  it  is  not  so  universally 
settled,  that  the  judgment  is  conclusive  of  all  the  points, 
which  are  incidentally  disposed  of  by  the  judgment,  or 
of  the  facts  or  allegations,  upon  which  it  professes  to  be 
founded.  In  this  respect  different  rules  are  adopted  by 
different  states,  both  in  Europe  and  in  America.  In 
England  such  judgments  are  held  conclusive,  not  only 
in  rem,  but  also  as  to  all  the  points  and  facts,  which 
they  professedly  or  incidentally  decide.^  In  some  of 
the  American  States  the  same  doctrine  prevails.  While 
in  other  American  States  the  judgments  are  held  con- 
clusive only  in  rem,  and  may  be  controverted  as  to  all 
the  incidental  grounds  and  fticts  on  which  they  profess 
to  be  founded.^ 


him  in  a  suit  brought  in  the  country  of  his  own  domicil,  or  in  another  fo- 
reign country  1  These  questions  are  propounded  for  the  consideration  of 
the  learned  reader,  without  any  attempt  to  discuss  or  solve  them. 

1  In  Blad  v.  Bamfield,  decided  by  Lord  Nottingham,  and  reported  in 
3  Swanst.  R.  604,  a  perpetual  injunction  was  awarded  to  restrain  certain 
suits  of  trespass  and  trover  for  seizing  the  goods  of  the  defendant  (Bam- 
field) for  trading  in  Ireland,  contrary  to  certain  privileges  granted  to  the 
plaintiff  and  others.  The  property  was  seized  and  condemned  in  the  Da- 
nish courts  ;  Lord  Nottingham  held  the  sentence  conclusive  against  the 
suits,  and  awarded  the  injunctions  accordingly. 

2  See  4  Cuwen,  R.  52-3,  n.  and  cases  cited  ;  Vandenheuvel  r.  U.  Insu- 
rance Co.  2  Caines'  Cases  in  Err.  217;  2  Johns.  Cases,  451,  Id.  481  ;  Robin- 
gon  V.  Jones,  8  Mass.  R.  536  ;  Maley  v.  Shattiick,  3  Cranch,  488 ;  2  Ivent, 
Comm.  Lect.  37,  p.  120,  121,  3d  edit,  and  cases  there  cited  ;  Tarleton  v. 
Tarlelon,  4  M.  &  Selvv.  20.  See  Peters  v.  Warren  Insur.  Co.  3  Sumner, 
R.  p.  3H9  ;  S.  C.  I  Chand.  Law  Reporter,  281  ;  Gelston  v.  Hoyt,  3 
Wlieat.  R.  246. 


CH.  XV.]  FOREIGN    JUDGMENTS.  985 

§  594.  A  similar  doctrine  has  been  contended  for,  and 
in  many  cases  successfully,  in  Hivor  of  sentences  of  a 
peculiar  character ;  such  as  those  which  touch  the 
general  capacity  of  persons,  and  those  which  concern 
marriage  and  divorce.  Thus,  foreign  jurists  strongly 
contend,  that  the  decree  of  a  foreign  court,  declaring 
the  state  (status)  of  a  person,  and  placing  him,  as  an 
idiot,  or  minor,  or  prodigal,  under  guardianship,  ought 
to  be  deemed  of  univers.-il  authority  and  obligation.' 
And  so  it  ought,  and  doubtless  would  be  deeme  in 
regard  to  all  acts  done,  and  authority  exercised,  within 
the  jurisdiction  of  the  sovereign,  whose  tribunals  have 
pronounced  the  sentence.  But  the  necessity  of  giving 
it  universal  effect,  so  as  to  make  the  guardianship  ope- 
rative and  effectual  in  all  other  countries,  in  regard  to 
the  person,  and  his  property  in  those  countries,  is  not 
so  obvious.  But  we  have  already  had  occasion  to  con- 
sider this  subject  in  another  place.^ 

§  595.  As  to  sentences  confirming  marriages,  or 
granting  divorces,  they  may  well  stand  upon  a  distinct 
ground.  If  they  are  pronounced  by  competent  tri- 
bunals in  regard  to  persons  within  the  jurisdiction, 
there  is  great  reason  to  say,  that  they  ought  to  be 
held  of  universal  conclusiveness,  force,  and  effect,  in 
all  other  countries.      Lord  Hardwicke    is  reported  to 


1  1  Boullenois,  Observ.  25,  p.  603,  Burgiindus's  opinion.  —  Indeed, 
Bur^undus  seems  to  have  been  of  opinion,  thai  (he  only  judgments,  which 
ought  to  have  any  force  or  operation  exira-territorially,  are  those,  wliich 
respect  the  state  and  condition  of  persons.  Sed  qiioniam  omnis  propositi 
nostri  summa  eo  speclat,  ut  scialur,  ntnim  snum  sententia  egrediatur  ter- 
ritorium,  excutiamus  iiaque  naluram  singularum.  Nam  mihi  sola  (says 
he)  ilia  sententia,  quae  de  statu  personae  feriur,  explicare  vires  extra  ter- 
ritorii  limites  videtur.  Burgundus,  Tract.  3,  n.  II,  12,  p.  90  ;  1  Boullenois, 
Observ.  25,p.  003. 

2  Ante,  i  495  to  504. 

CONFL.  83 


986  CONFLICT    OF   LAWS.  [CH.   XV. 

have  said  in  a  case  before  him,  in  which  the  validity 
of  a  marriage  in  France  was  asserted  to  have  been 
established  by  the  sentence  of  a  court  in  France, 
having  the  proper  jurisdiction  thereof;  "It  is  true, 
that  if  so,  it  is  conclusive,  whether  in  a  foreign  court, 
or  not,  from  the  law  of  nations  in  such  cases ;  other- 
wise the  rights  of  mankind  would  be  very  precarious."  ^ 
§  596.  On  the  other  hand  Lord  Stowell,  in  a  case 
before  him,  in  which  the  validity  of  a  foreign  sentence 
of  divorce  was  set  up,  as  a  bar  to  proceedings  in  the 
English  Ecclesiastical  Courts  between  the  same  parties, 
said ;  "  Something  has  been  said  on  the  doctrine  of  law 
regarding  the  respect  due  to  foreign  judgments ;  and 
undoubtedly  a  sentence  of  separation,  in  a  proper  court, 
for  adultery,  would  be  entitled  to  credit  and  attention 
in  this  court.  But  I  think  the  conclusion  is  carried  too 
far,  when  it  is  said,  that  a  sentence  of  nullity  of  mar- 
riage is  necessarily  and  universally  binding  on  other 
countries.  Adultery  and  its  proofs  are  nearly  the  same 
in  all  countries.  The  validity  of  marriage,  however,  must 
depend,  in  a  great  degree,  on  the  local  regulations  of  the 
country  where  it  is  celebrated.  A  sentence  of  nullity  of 
marriage  therefore,  in  the  country  where  it  was  solemn- 
ized, would  carry  with  it  great  authority  in  this  country. 
But  I  am  not  prepared  to  say  that  a  judgment  of  a  third 
country  on  the  validity  of  a  marriage,  not  within  its  ter- 
ritories, nor  had  between  subjects  of  that  country,  would 
be  universally  binding.  For  instance,  the  marriage,  alleg- 
ed by  the  husband  is  a  French  marriage;  a  French  judg- 
ment on  that  marriage  would  have  been  of  considerable 
weight ;  but  it  does  not  follow,  that  the  judgment  of  a 

1  Roach  V.  Garvan,  1  Ves.  157.  See  also  a  case  in  the  time  of  Charles 
2d,  cited  by  Lord  Hardwicke  in  Boucher  v.  Lawson,  Cas.  T.  Hard.  89  ; 
and  also  in  Kennedy  v.  Earl  of  Cassilis,  2  Swanst.  R.  326,  note. 


CH.  XV.']  FOREIGN   JUDGMENTS.  987 

court  at  Brussels,  on  a  marriage  in  France,  would  have 
the  same  authority,  much  less  on  a  marriage  celebrated 
here  in  En  "land.  Had  there  been  a  sentence  against 
the  wife  for  adultery  in  Brabant,  it  might  have  pre- 
vented her  from  proceeding  with  any  effect  against  her 
husband  here ;  but  no  such  sentence  anywhere  ap- 
pears." ^ 

§  597.  This  subject,  however,  has  already  been  con- 
sidered at  large  in  the  preceding  discussions,  relative 
to  divorces.  The  result  of  the  doctrine  therein  stated 
is,  that  the  English  courts  seem  not  to  be  disposed  to 
admit,  that  any  valid  sentence  of  divorce  can  be  pro- 
nounced in  any  foreign  country,  which  shall  amount  to 
the  dissolution  of  a  marriage,  celebrated  in  England  be- 
tween English  subjects,  at  least  so  far  as  such  a  divorce 
is  to  have  any  force  or  operation  in  England.  At  the 
same  time  it  may  be  remarked,  that  the  doctrine,  so  ap- 
parently held,  has  undergone  very  elaborate  discussions 
at  a  very  recent  period  ;  and  the  grounds,  upon  which 
it  rests,  have  been  greatly  shaken.^  But  in  Scotland, 
and  in  America,  a  different  doctrine  is  maintained  ;  and 
it  is  firmly  held,  that  a  sentence  of  divorce,  pronounced 
between  parties  actually  domiciled  in  the  country, 
whether  natives  or  foreigners,  by  a  competent  tribunal, 
having  jurisdiction  over  the  case,  is  valid,  and  ought  to 
be  held  everywhere  a  complete  dissolution  of  the  mar- 
riage, in  whatever  country  it  may  have  been  origi- 
nally celebrated.'"^  Of  course  we  are  to  understand, 
that   the  sentence  is  obtained  hond  fide  and   without 


1  Sinclair  v.  Sinclair,  1   Hagg.  Consist.  Rep.   297.     See  also  Scrim- 
shire  V.  Scrinnshire,  2  Hagg.  Consist.  Rep.  397,  410. 

2  Ante,  ^  215,  225  to  228. 

3  See  ante,  ^212,  215  to  230. 


988  CONFLICT    OF   LAWS.  [CH.  XV. 

fraud ;  for  fraud  in  this  case,  as  in  other  cases,  will 
vitiate  any  judgment,  however  well  founded  in  point  of 
jurisdiction,  i 

§  598.  In  the  next  place,  as  to  judgments  in  personam. 
And  here  a  distinction  is  commonly  taken  between  suits 
brought  by  a  party  to  enforce  a  foreign  judgment,  and 
suits  brought  against  a  party  who  sets  up  a  foreign 
judgment  in  bar  of  the  suit  by  way  of  defence.  In  the 
former  case  it  is  often  urged,  that  no  sovereign  is  bound 
jure  gentium  to  execute  any  foreign  judgment  within  his 
dominions;  and  therefore,  if  execution  of  it  is  sought  in 
his  dominions,  he  is  at  liberty  to  examine  into  the 
merits  of  the  judgment,  and  to  refuse  to  give  effect  to 
it,  if,  upon  such  examination,  it  should  appear  unjust 
and  unfounded.  He  acts  in  executing  it  upon  the  prin- 
ciples of  comity;  and  has,  therefore,  aright  to  prescribe 
the  terms  and  limits  of  that  comity.^  But  it  is  other- 
wise, (it  is  said,)  where  the  defendant  sets  up  a  foreign 
judgment,  as  a  bar  to  proceedings ;  for  if  it  has  been 
pronounced  by  a  competent  tribunal,  and  carried  into 
effect,  the  losing  party  has  no  right  to  institute  a  new 
suit  elsewhere,  and  thus  to  bring  the  matter  again  into 
controversy;  and  the  other  party  is  not  to  lose  the  pro- 
tection which  the  foreign  judgment  gave  him.  It  is 
then  Res  judicata,  which  ought  to  be  received,  as  con- 


1  See  Starkie  on  Evid.  Pt.  2,^77,  79,  83;  Duchess  of  Kingston's 
case,  11  Slate  Trials,  261,  262;  S.  C.  20  Howell,  Slate  Trials,  355,  and 
the  opinion  of  the  Judges  ;  Id.  p.  538,  note.  See  also  Mr.  Hargrave's 
learned  argument  in  this  case,  as  to  the  conclusiveness  of  res  adjudicata, 
especially  in  cases  of  jacilalion  of  marriage  and  divorce,  and  of  the  effect 
of  fraud  in  procuring  such  sentences.  Harg.  Law  Tracts,  449,  479,  483. 
See  also  Bowles  v.  Orr,  1  Younge  &  Coll.  464. 

2  2  Kent,  Comm.  Lect.  37,  p.  119,  120,  3d  edit.;  and  the  cases  there 
cited.     See  also  1  Boullenois,  Observ.  25,  p.  601  ;  post,  i^)  611  to  618. 


CH.    XV.]  FOREIGN    JUDGMENTS.  989 

elusive  evidence  of  right ;  and  the  Exceptio  rei  jiidicatce 
under  such  circumstances  is  entitled  to  universal  con- 
clusiveness and  respect.^  This  distinction  has  been 
very  frequently  recognized  as  having  a  just  foundation 
in  international  justice.^ 

§  599.  Lord  Chief  Justice  Eyre  has  stated  it  with 
his  usual  force  in  an  elaborate  judgment.  "  If  we  had 
the  means,  (said  he,)  we  could  not  examine  a  judgment 
of  a  court  in  a  foreio-n  state  brou^'ht  before  us  in  this 
manner,  (that  is,  by  the  defendant,  as  a  bar.)  It  is  in 
one  way  only,  that  the  sentence  or  judgment  of  the 
court  of  a  foreign  state  is  examinable  in  our  courts ; 
and  that  is,  when  the  party,  who  claims  the  benefit  of 
it,  applies  to  our  courts  to  enforce  it.  When  it  is  thus 
voluntarily  submitted  to  our  jurisdiction,  we  treat  it, 
not  as  obligatory  perhaps  in  the  country  in  which  it 
was  pronounced,  nor  as  obligatory  to  the  extent  to 
which  by  our  law  sentences  and  judgments  are  obli- 
gatory ;  not  as  conclusive,  but  as  matter  in  pais  ;  as  a 
consideration  primci  facie  sufficient  to  raise  a  promise. 
We  examine  it,  as  we  do  all  other  considerations  or 
promises ;  and  for  that  purpose  we  receive  evidence  of 
what  the  law  of  the  foreign  state  is,  and  whether  the 
judgment  is  warranted  by  that  law.  In  all  other  cases, 
we  give  entire  faith  and  credit  to  the  sentences  of  fo- 


1  2  Kent,  Comra.  Lect.  37,  p.  119,  120,  3d  edit.;  and  cases  there 
cited. 

2  Id.  and  cases  there  cited;  Burrows  v.  Jeniino,  2  Str.  R.  733 ;  S.  C. 
cited  Cas.  T.  Hard,  87;  Boucher  v.  Lawson,  Cas.  T.  Hard.  89;  2 
Swanst.  R.  326,  note  ;  Tarleton  v.  Tarleton,  4  M.  &  Selw.  20 ;  Taylor  r. 
Phelps,  1  Gill  &  Johns.  R.  492;  Griswold  v.  Pitcairn,  4  Connect.  R.  85. 
See  Burnham  v.  Webster,  1  Wood.  &  Minot,  R.  174;  Rangely  v.  Web- 
ster, 11  New  Ilamp.  R.  299. 

83* 


990  CONFLICT    OF   LAWS.  [CH.  XV. 

reign  courts,  and  consider  them  as  conclusive  upon  us."  ^ 
The  same  distinction  is  found  applied  in  the  same  man- 
ner in  the  jurisprudence  of  Scotland.^ 

§  599  a.  The  view  which  was  thus  taken  by  Lord 
Chief  Justice  Eyre,  does  not  appear  to  have  been  acted 
upon  to  its  full  extent  in  subsequent  times.  It  would 
seem  a  natural  result  from  that  view,  that  if  a  suit  was 
brought  for  the  same  cause  of  action,  in  an  English 
Court,  which  had  already  been  decided  in  favor  of  either 
party  in  a  foreign  court  of  competent  jurisdiction,  and 
was  final  and  conclusive  there,  that  judgment  might  be 
well  pleaded  in  bar  of  the  new  suit  upon  the  original 
cause  of  action,  and  would,  if  hond  fide,  be  conclusive. 
It  may  be  doubted,  however,  whether  the  same  doctrine 
is  at  present  entertained  in  England.  In  a  recent  case, 
the  Court  seem  to  have  thought,  that  if  a  plaintiff  has 
recovered  judgment  in  a  foreign  country  upon  any  ori- 
ginal cause  of  action,  he  may,  notwithstanding,  sue  in 
England  upon  that  original  cause  of  action,  or  may  sue 
upon  the  judgment  there  obtained,  at  his  option ;  be- 
cause the  original  cause  of  action  is  not  merged  in  such 
a  judgment.^  [And  the  same  view  has  recently  been 
adopted  in  America,  where  it  was  also  determined  that 
an  action  could  not  be  sustained  in  the  State  of  Maine, 
upon  a  judgment  recovered  in  the  State  of  Illinois,  but 
that  a  suit  for  the  original  cause  of  action  was  still  open 


1  Phillips  V.  Hunter,  2  H.  Black.  R.  410. 

2  Erskine,  Inst.  U.  4,  tit.  3,  §i  4. 

3  Smith  V.  Nichols,  5  Bing.  N.  Cas.  208,  221  to  224.  There  were 
peculiar  circumstances  in  the  case,  and  therefore  the  point  was  not  posi- 
tively decided.  The  same  doctrine  seems  to  have  been  asserted  in  Hall 
V.  Odber,  II  East,  R.  118  ;  but  there  also  it  was  not  directly  decided. 
But  see  Pluntimer  v.  Woodhouse,  4  Barn  &  Cresw.  R,  625  :  ante  §  547, 
note ;  Becquet  v.  McCarthy,  2  Barn.  &  Adolp.  961  ;  ante,  ^  548  a. 


CH.    XV.]  FOREIGN   JUDGMENTS.  991 

to  the  plaintiff.]'  Now,  if  the  original  cause  of  action 
is  not  merged  in  a  case  where  the  judgment  is  in  favor 
of  the  plaintiff,  it  seems  difficult  to  assert,  that  it  is 
merged  by  a  judgment  in  the  foreign  court  in  favor  of 
the  defendant." 

[599  h.  The  effect  of  a  foreign  judgment  in  flivor  of 
the  same  plaintiff,  when  relied  upon  as  a  bar,  by  way 
of  merger,  in  a  suit  upon  the  same  cause  of  action,  in 
another  State,  has  been  much  discussed  of  late  ;  and  the 
prevailing  opinion  seems  to  be,  that  if  the  foreign  Court 
had  no  jurisdiction  of  the  person  of  the  defendant,  a 
judgment  there  in  favor  of  the  plaintiff,  would  not  merge 
the  original  cause  of  action,  so  as  to  defeat  an  action  in 
another  State  upon  the  same  cause.^  So,  the  foreign 
judgment  is  open  to  examination,  to  show  that  a  por- 
tion of  the  claims  originally  sued  upon  in  the  foreign 
Court,  were  afterwards  withdrawn,  and  were  not  passed 
upon  by  the  jury,  and  therefore  were  not  included  in 
the  foreign  judgment] 

§  600.  Lord  Kames  has  marked  out  and  supported 
another  distinction,  between  suits  sustaining,  and  suits 
dismissing  a  claim.  "  In  the  last  place  (says  he)  come 
foreign  decrees  ;  which  are  of  two  kinds,  one  sustaining 
the  claim,  and  one  dismissing  it.  A  foreign  decree,  sus- 
taining the  claim,  is  not  one  of  those  universal  titles, 
which  ought  to  be  made  effectual  everywhere.     It  is  a 


1  McVicker  v.  Beedy,  31  Maine,  R.  314.  In  this  case  the  defendant's 
property  was  attached  in  Illinois,  on  the  original  suit,  but  the  defendant 
himself  was  never  served  with  process,  and  never  appeared  to  the  action. 
See  also  Middlesex  Bank  v.  Butman,  21)  INIaine,  R.  19. 

2  A  foreign  judgment  for  costs  may  be  enforced  in  England.  Russell 
V.  Smyth,  9  Mees.  &  Wels,  810. 

3  Middlesex  Bank  v.  Butman,  29  Maine,  R.  19. 

4  Burnham  u.  Webster,  1  Woodbuiy  &  Minot,  R.  172. 


992  CONFLICT    OF   LAWS.  [cH.  XV. 

title  that  depends  on  the  authority  of  the  court  whence 
it  issued,  and  therefore  has  no  coercive  authority  extra 
territorium.  And  yet,  as  it  would  be  hard  to  oblige  the 
person,  who  claims  on  a  decree,  to  bring  a  new  action 
against  his  party  in  every  country  to  which  he  may  re- 
tire ;  therefore,  common  utility,  as  well  as  regard  to  a 
sister  court,  have  established  a  rule  among  all  civilized 
nations,  that  a  foreign  decree  shall  be  put  in  execution, 
unless  some  good  exception  be  opposed  to  it  in  law  or 
equity ;  which  is  making  no  wider  step  in  favor  of  the 
decree,  than  to  presume  it  just,  till  the  contrary  be 
proved.  But  this  includes  not  a  decree,  decerning  for 
a  penalty ;  because  no  court  reckons  itself  bound  to 
punish,  or  to  concur  in  punishing,  any  delict  committed 
extra  territorium!^ 

§  601.  "  A  foreign  decree,  which,  by  dismissing  the 
claim,  affords  an  Exceptio  rei  jiidicatce  against  it,  enjoys 
a  more  extensive  privilege.  We  not  only  presume  it 
to  be  just,  but  will  not  admit  any  evidence  of  its  being 
unjust.  The  reasons  follow.  A  decreet-arbitral  is  final 
by  mutual  consent.  A  judgment-condemnator  ought 
not  to  be  final  against  the  defendant,  because  he  gave 
no  consent.  But  a  decreet-absolvitor  ought  to  be  final 
against  the  plaintiff,  because  the  judge  was  chosen  by 
himself;  with  respect  to  him,  at  least,  it  is  equivalent 
to  a  decreet-arbitral.  Public  utility  affords  another  ar- 
gument extremely  cogent.  There  is  nothing  more 
hurtful  to  society,  than  that  lawsuits  be  perpetual.  In 
every  lawsuit  there  ought  to  be  a  ne  plus  ultra ;  some 
step  ought  to  be  ultimate  -,  and  a  decree  dismissing  a 
claim  is  in  its  nature  ultimate.  Add  a  consideration, 
that  regards  the  nature  and  constitution  of  a  court  of 
justice.  A  decree  dismissing  a  claim,  may,  it  is  true, 
be  unjust,  as  well  as  a  decree  sustaining  it.     But  they 


CH.    XV.]  FOREIGN    JUDGMENTS.  993 

differ  widely  in  one  capital  point ;  in  declining  to  give 
redress  against  a  decree  dismissing  a  claim,  the  court  is 
not  guilt}^  of  authorizing  injustice,  even  supposing  the 
decree  to  be  unjust ;  the  utmost  that  can  be  said,  is, 
that  the  court  forbears  to  interpose  in  behalf  of  justice. 
But  such  forbearance,  instead  of  being  fiiulty,  is  highly 
meritorious  in  every  case,  where  private  justice  clashes 
with  public  utility.  The  case  is  very  different  with  re- 
spect to  a  decree  of  the  other  kind ;  for  to  award  exe- 
cution upon  a  foreign  decree,  without  admitting  any 
objection  against  it,  would  be,  for  aught  the  court  can 
know,  to  support  and  promote  injustice.  A  court,  as 
well  as  an  individual,  may  in  certain  circumstances  have 
reason  to  forbear  acting,  or  executing  their  oflice  ;  but 
the  doing  injustice,  or  the  supporting  it,  cannot  be  justi- 
fied in  any  circumstances."  ^ 

§  602.  It  does  not  appear,  that  this  distinction  of 
Lord  Karnes,  between  judgments  sustaining  suits,  and 
judgments  dismissing  them,  has  been  recognized  in  the 
common  law.^  And  there  seems  quite  as  much  reason, 
that  a  defendant  should  be  protected  against  a  new  liti- 
gation, after  there  has  been  a  final  sentence  in  his  fiivor, 
as  there  is,  that  a  plaintiff  should  be  protected  in  the 
enjoyment  of  any  right  which  is  established  by  a  sen- 
tence in  his  favor.  The  sentence  for  the  defendant 
may,  in  its  legal  operation,  as  completely  establish  a 
right  in  him,  or  as  completely  establish  the  non-exist- 
ence of  any  right  in  the  plaintiff,  as  the  contrary  sen- 
tence would  establish  an  adverse  right  in  the  plaintiff, 


1  2  Kames  on  Equity,  p.  365,  3d  edit.  1778. 

2  See  the  cases  cited  in  Starkie  on  Evid.  Pt.  2,  ^  80  ;  Iloyt  v.  Gelston, 
13  Johns-.  R.  561  ;  S.  C.  3  Wheat.  R.  246  ;  The  Bennett,  1  Dodson,  R. 
175,  180. 


994  CONFLICT   OF   LAWS.  [CH.  XV. 

and  the  non-existence  of  any  repugnant  right  in  the 
defendant. 

§  603.  In  the  next  place,  as  to  judgments  in  personam, 
which  are  sought  to  be  enforced  by  a  suit  in  a  foreign 
tribunal.  There  has  certainly  been  no  inconsiderable 
fluctuation  of  opinion  in  the  English  courts  upon  this 
subject.  It  is  admitted  on  all  sides,  that  in  such  cases, 
the  foreign  judgments  are  ]mmd  facie  evidence  to  sus- 
tain the  action,  and  are  to  be  deemed  right  until  the 
contrary  is  established ; '  and  of  course  they  may  be 
avoided,  if  they  are  founded  in  fraud,  or  are  pronounced 
lay  a  court  not  having  any  competent  jurisdiction  over 
the  cause.^  But  the  question  is,  whether  they  are  to 
be  deemed  conclusive ;  or  whether  the  defendant  is  at 
liberty  to  go  at  large  into  the  original  merits,  to  show, 
that  the  judgment  ought  to  have  been  different  upon  the 
merits,  although  obtained  honafide.  If  the  latter  course 
be  the  correct  one,  then  a  still  more  embarrassing  con- 
sideration is,  to  what  extent,  and  in  what  manner,  the 
original  merits  can  be  properly  inquired  into. 

§  i;04.  Lord  Nottingham,  in  a  case,  where  an  attempt 
was  made  to  examine  a  foreign  sentence  of  divorce  in 
Savoy,  in  the  reign  of  Charles  the  Second,  held,  that  it 
was  conclusive,  and  its  merits  not   examinable.     "  We 


1  See  Monroe  u.  Douglas,  4  Sandf.  Ch.  R.  126  —  a  very  elaborate  case 
on  this  subject;  Walker  v.  Witter,  Doug.  R.  1,  and  cases  there  cited  ; 
Arnold  v.  Redfern,  3  Bing.  R.  353  ;  Sinclair  v.  Fraser,  cited  Doug.  R.  4, 
5,  note  ;  Houlditch  v.  Donegal,  2  Clark  &  Finnell,  R.  470  ;  S.  C.  8  Bligh, 
R.  301  ;  Don  v.  Lippmann,  5  Clark  &  Finn.  1,  19,  20;  Price  v.  Dew- 
hurst,  8  Sim.  R.  279  ;  Alivon  v.  Furnival,  1  Cromp.  Mees.  &  Rose.  277  ; 
Hall  V.  Odber,  11  East,  R.  118;  Ripple  v.  Ripple,  1  Rawle,  R.  386. 

2  See  Bowles  v.  Orr,  1  Younge  &  Coll.  464  ;  ante,  \  544,  545  to  550  ; 
Ferguson  v.  Mahon,  3  Perry  &  Dav.  143  ;  Price  v.  Dewhurst,  8  Simons, 
R.  279,  302;  Don  v.  Lippmann,  5  Clark  &  Finnell,  R.  1,  19,  20,  21 ;  S. 
P.  Ferguson  u.  Mahon,  11  Adolp.  &  Ellis,  179,  182. 


CH.  XV.]  FOREIGN   JUDGMENTS.  995 

know  not  (said  he)  the  laws  of  Savoy.  So,  if  w^e  did, 
we  have  no  power  to  judge  by  them.  And,  therefore, 
it  is  against  the  law  of  nations  not  to  give  credit  to  the 
sentences  of  foreign  countries,  till  they  are  reversed  by 
the  law,  and,  according  to  the  form,  of  those  countries, 
wherein  they  were  given.  For  what  right  hath  one 
kingdom  to  reverse  the  judgment  of  another  ?  And 
how  can  we  refuse  to  let  a  sentence  take  place,  until  it 
be  reversed?  And  what  confusion  would  follow  in 
Christendom,  if  they  should  serve  us  so  abroad,  and 
give  no  credit  to  our  sentences."  ^  Lord  Ilardwicke 
manifestly  held  the  same  opinion,  saying ;  "  That  where 
any  court,  foreign  or  domestic,  that  has  the  proper  juris- 
diction of  the  cases,  makes  the  determination,  it  is  con- 
clusive to  all  other  courts."  ^ 

§  605.  On  the  other  hand.  Lord  Mansfied  thought 
that  foreign  judgments  gave  a  ground  of  action,  but 
that  they  were  examinable.^  The  same  doctrine  was 
held  by  Lord  Chief  Baron  E3're,''  and  Mr.  Justice  Cul- 
ler,^ the  latter  relying  upon  a  decision  of  the  House  of 
Lords,  as  giving  the  true  line  of  distinction  between  fo- 
reign and  domestic  judgments.  Li  that  case  the  House 
of  Lords  reversed  a  decision  of  the  Court  of  Session  of 
Scotland,  in  which  the  latter  Court  held  the  plaintiff 
bound  in  a  suit  upon  a  foreign  judgment  to  prove  be- 
fore the  Court  the  general  nature  and  extent  of  the  de- 


1  Kennedy  v.  Earl  of  Cassilis,  2  Svvanslon,  R.  note,  326,  327. 

2  Bouclier  i>.  Lawson,  Cas.  T.  Hard.  89.  See  also  Roach  v.  Garvan, 
1  Yes.  157. 

3  Walker  v.  Witter,  Doug.  1 ;  Id.  6,  note  3  ;  Herbert  v.  Cooke,  Willes, 
R.  36,  note;  S.  P.,  Hall  v.  Odber,  11  East,  R.  118;  S.  P.,  Bayley  v.  Ed- 
wards, 3  !Swanst.  R.  703,  711,  712. 

4  Phillips  V.  Hunter,  2  H.  Black.  410;  ante,  §  2. 

5  Galbraith  v.  Neville,  cited  Doug.  R.  6,  note  3. 


996  CONFLICT    OF   LAWS.  [CH.   XV. 

mand,  on  -which  the  judgment  had  been  obtained.  The 
reversal  expressly  declared,  that  the  judgment  ought  to 
be  received  as  evidence  prima  facie,  of  the  debt ;  and 
that  it  lav  upon  the  defendant  to  impeach  the  justice 
thereof,  or  to  show  the  same  to  have  been  irregularly, 
or  wrongfully  obtained.^  But  it  may  be  remarked  of 
this  last  decision,  that  it  does  not  go  to  the  extent  of 
establishing  the  doctrine,  that  the  merits  of  the  judg- 
ments ab  origine  are  reexaminable  de  novo ;  but  only 
that  its  justice  may  be  impeached,  or  its  irregularity  or 
fraud  shown.^ 

§  606.  Lord  Kenyon  seems  clearly  to  have  been  of  a 
different  opinion,  and  expressed  serious  doubts,  whether 
foreign  judgments  were  not  binding  upon  the  parties 
here.^  And  Lord  Ellenborough,  upon  an  occasion  in 
which  the  argument  was  pressed  before  him,  that  a  fo- 
reign judgment  was  reexaminable,  and  that  the  de- 
fendant might  impeach  the  justice  of  it,  pithily  re- 
marked, that  he  thought  he  did  not  sit  at  Nisi  Priiis  to 
try  a  writ  of  error,  upon  the  proceedings  of  the  court 
abroad.'*     In  a  more  recent  case  Sir  L.  Shadwell,  (the 


1  Sinclair  v.  Fraser,  Doug.  R.  4,  5,  note  1. 

2  Ante,  ^  544  to  550,  603.  —  In  Alivon  v.  Furnival,  1  Cromp.  Mees.  «St 
Rose.  277,  it  seems  to  have  been  held,  although  not  expressly  so  laid 
down  by  the  Court,  that  the  proceedings  of  foreign  courts  must  be  pre- 
sumed to  be  consistent  with  the  foreign  law,  until  the  contrary  is  distinctly 
shown  ;  and  that,  therefore,  the  principle  adopted  by  a  foreign  court  in 
assessing  damages  cannot  be  impugned,  unless  contrary  to  natural  justice, 
or  proved  not  to  be  conformable  to  the  foreign  law.  The  same  point  was 
adjudged  in  Martin  v.  Nicolls,  3  Sim.  R.  458,  and  Becquet  v.  McCarthy,  2 
Barn.  &  Adolp.  951  ;  S.  F.  Ferguson  v.  Mahon,  11  Adolp.  &  Ellis,  179, 
182. 

3  Galbraith  v.  Neville,  Doug.  R.  5,  note  3.  See  also  Guinness  v. 
Carwell,  1  Barn.  &  Adolph.  459. 

4  Tarleion  v.  Tarleton,  4  Maule  &  Selw.  21.  But  see  Hall  v.  Odber, 
11  East,  R.  118. 


CH.  XV.]  FOREIGN    JUDGMENTS.  '        997 

Vice-Chancellor,)  upon  a  full  examination  of  the  au- 
thorities, held  the  opinion,  that  the  true  doctrine  was, 
that  foreign  judgments  were  conclusive  evidence,  and 
not  re -examinable ;  that  this  was  the  true  result  of  the 
old  authorities  ;  and  therefore  in  a  suit  hrouirht  in  En  or- 
land  to  enforce  a  foreign  judgment,  he  held  the  judg- 
ment to  be  conclusive.^  The  present  inclination  of  the 
English  Courts  seems  to  be  to  sustain  the  conclusiveness 
of  foreign  judgments;^  although  certainly  there  yet 
remains  no  inconsiderable  diversity  of  opinion  among 
the  learned  judges  of  the  different  tribunals.'^  [This 
question  was  much  discussed  in  a  recent  English 
case,^  in  the  Queen's  Bench,  where  all  the  authorities 
were  examined,  and  it  was  determined  that  a  foreign 
judgment  was  only  'prima  facie  evidence  for  the  courts 
of  England,  and  so  far  examinable  as  to  show  that  the 
foreign  Court  had  no  jurisdiction  of  the  sub 
or  of  the  person  of  the  defendant,  or  that  the  judgment 


'  Martin  u.  Nicolls,  3  Simons,  R.  458.  But  see  Bank  of  Australasia 
V.  Harding,  19  Law  Journ.  C.  P.  345. 

2  See  Guinness  v.  Carroll,  1  Barn.  &  Adolp.  459;  Becquet  u.  ]McCar- 
thy,  2  Barn.  &  Adolph.  R.  951. 

3  In  Houlditch  v.  Donegal,  8  Bligh,  R.  301,  337  to  310,  Lord  Brougham 
held  a  foreign  judgment  to  be  only  prima  facie  evidence,  and  gave  his  rea- 
sons at  large  for  that  opinion.  [And  the  same  was  held  in  the  late  case 
of  Bank  of  Australasia  v.  Harding,  19  Law  Journ.  C.  P.  345.]  On  the 
other  hand,  Sir  L.  Shadwell,  in  Martin  v.  Nicolls,  held  the  contrary  opi- 
nion, that  it  was  conclusive  ;  and  also  gave  a  very  elaborate  judgment  on 
the  point,  in  which  he  reviewed  the  principal  authorities.  Of  course,  the 
learned  Judge  meant  to  except,  and  did  except,  in  a  later  case.  Price  v. 
Dewhurst,  8  Sim.  R.  279,  302,  judgments  which  were  produced  by  fraud. 
See  also  Don  v.  Lippmann,  5  Clark  &  Finnell.  1,  20,  21  ;  ante,  ^  545  to 
§  550,  to  ^  605;  Alivon  v.  Furnival,  1  Cromp.  Mees.  &  Rose.  277,  284. 
See  also  Ferguson  v.  Mahon,  11  Adolp.  &  Ellis,  179, 182  ;  Henderson  t-. 
Henderson,  3  Hare,  R.  100,  113,  114,  115. 

4  Bank  of  Australasia  v.  Nias,  20  Law  Journ.  284 ;  S.  C.  4  Eng.  Rep. 
252.     See  also  Lewis  r.  Wilder,  4  Louis.  Ann.  R.  574. 

CONFL.  84 


998  CONFLICT    OF   LAWS.  [CH.  XV. 

was  fraudulently  obtained  -,  but  that  it  was  conclusive 
upon  the  defendant  so  far  as  to  prevent  him  from  alleg- 
ing that  the  promises  upon  which  it  was  founded  were 
never  made,  or  were  obtained  by  fraud  of  the  plaintiff; 
and  that  any  pleas  which  might  have  been  pleaded  to 
the  original  action,  could  not  be  pleaded  to  the  action 
upon  the  judgment.] 

§  607.  It  is  indeed  very  difficult  to  perceive,  what 
could  be  done,  if  a  different  doctrine  were  maintainable 
to  the  full  extent  of  opening  all  the  evidence  and  merits 
of  the  cause  anew,  on  a  suit  upon  the  foreign  judgment. 
Some  of  the  witnesses  may  be  since  dead  ;  some  of  the 
vouchers  may  be  lost,  or  destroyed.  The  merits  of  the 
case,  as  formerly  before  the  court  upon  the  whole  evi- 
dence, may  have  been  decidedly  in  favor  of  the  judg- 
ment; upon  a  partial  possession  of  the  original  evidence 
they  may  now  appear  otherwise.  Suppose  a  case 
purely  sounding  in  damages,  such  as  an  action  for  an 
assault,  for  slander,  for  conversion  of  property,  for  a 
malicious  prosecution,  or  for  a  criminal  conversation ;  is 
the  defendant  to  be  at  liberty  to  re-try  the  whole  merits, 
and  to  make  out,  if  he  can,  a  new  case  upon  new  evi- 
dence ?  ^  Or  is  the  court  to  review  the  former  decision, 
like  a  court  of  appeal,  upon  the  old  evidence  ?  In  a  case 
of  covenant,  or  of  debt,  or  of  a  breach  of  contract,  are  all 
the  circumstances  to  be  re-examined  anew  ?  If  they 
are,  by  what  laws  and  rules  of  evidence  and  principles 
of  justice  is  the  validity  of  the  original  judgment  to  be 
tried  ?  Is  the  court  to  open  the  judgment,  and  to  pro- 
ceed ex  ceqiio  et  hono  ?  Or  is  it  to  administer  strict  law, 
and  stand  to  the  doctrines  of  the  local  administration  of 


1  See  Alivonu.  Furnival,  1  Cromp.  Mees.  &  Rose.  277. 


CH.    XV.]  FOREIGN   JUDGMENTS.  999 

justice  ?  Is  it  to  act  upon  the  rules  of  evidence  ac- 
knowledged in  its  own  jurisprudence,  or  upon  those  of 
the  foreign  jurisprudence?  These  and  many  more 
questions  might  be  put  to  show  the  intrinsic  difliculties 
of  the  subject.  Indeed,  the  rule,  that  the  judgment  is 
to  be  prima  facie  evidence  for  the  plaintiff,  would  be  a 
mere  delusion,  if  the  defendant  might  still  question  it 
by  opening  all  or  any  of  the  original  merits  on  his  side ; 
for  under  such  circumstances  it  would  be  equivalent  to 
granting  a  new  trial.  It  is  easy  to  understand,  that  the 
defendant  may  be  at  liberty  to  impeach  the  original 
justice  of  the  judgment,  by  showing,  that  the  court  had 
no  jurisdiction;  or  that  he  never  had  any  notice  of  the 
suit ;  ^  or  that  it  was  procured  by  fraud ;  or  that  upon 
its  face  it  is  founded  in  mistake ;  or  that  it  is  irregular, 
and  bad  by  the  local  law.  Fori  rci  judicatce.  To  such 
an  extent  the  doctrine  is  intelligible  and  practicable. 
Beyond  this,  the  right  to  impugn  the  judgment  is  in 
legal  effect  the  right  to  re-try  the  merits  of  the  original 
cause  at  large,  and  to  put  the  defendant  upon  proving 
those  merits.^ 

§  608.  The  general  doctrine  maintained  in  the  Ame- 
rican courts  in  relation  to  foreign  judgments  certainly 
is,  that  they  are  ^7r«;za  facie  evidence  ;  but  that  they 
are  impeachable.^     But  how  far,  and  to  what  extent. 


1  S.  P.  Ferguson  v.  Mahon,  11  Adolp.  &  Ellis,  179,  182. 

2  See  Arnot  r,  Redfern,  2  Carr.  &  Payne,  88 ;  S.  C.  3  Bing.  R.  353 ; 
Novelli  V.  Rossi,  2  Barn.  &  Adolph.  757 ;  Douglas  v.  Forrest,  4  Bing.  R. 
686  ;  Obicini  v.  Bligh,  8  Bing.  R.  335  ;  INIarlina  v.  Nicolls,3  Sim.  R.  458  ; 
Alivan  v.  Furnival,  1  Cromp.  Mees.  &  Rose.  277.  See  also  Starkie  on 
Evidence,  Pt,  2,  ^  67 ;  Phillips  &  Amos  on  Evidence,  (8th  edit.)  p.  537, 
538,  (1838) ;  Buttrick  v.  Allen,  8  Mass.  R.  273  ;  Huberus,  Tom.  2,  Lib. 
1,  tit.  3,  De  Conflictu,  ^  6. 

3  Many  of  the  cases  are  collected  ;  2  Kent,  Coram.  Lect.  27,  p.  1 18,  &c. 


1000  CONFLICT    OF   LAWS.  [CH.    XV. 

this  doctrine  is  to  be  carried,  does  not  seem  to  be  defi- 
nitely settled.  It  has  been  declared,  that  the  jurisdic- 
tion of  the  court/  and  its  power  ovpr  the  parties  and 
the  things  in  controversy,  may  be  inquired  into  ;  and 
that  the  judgment  may  be  impeached  for  fraud. ^  Be- 
yond this  no  definite  lines  have  as  yet  been  drawn. 

§  609.  By  the  Constitution  of  the  United  States  it  is 
declared,  that  full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial  proceed- 
ings of  every  other  State.  And  Congress,  in  pursuance 
of  the  power  given  them  by  the  Constitution  in  a  suc- 
ceeding clause,  have  declared,  that  the  judgments  of 
State  Courts  shall  have  the  same  faith  and  credit  in 
other  States,  as  they  have  in  the  State  where  they  are 
rendered.^  [And  the  same  rule  applies  to  judgments 
of  the  Circuit  Courts  of  the  United  States,  when  relied 
upon  in  a  State  Court.^]     They  are,  therefore,  put  upon 


3d  edit.  ;  in  4  Cowen,  R.  520,  note  3  ;  and  in  Mr.  Metcalf's  notes  to  his 
valuable  edition  of  Starkie  on  Evidence,  Pt.  2,  i^^GT,  68,  edit.  1830,  p.  214 
to  216.  See  also  Bissell  v.  Briggs,  9  Mass,  R.462  ;  Borden  v.  Fitch,  15 
Johns.  R.  121;  Green  v.  Sarmiento,  1  Peters,  Circt.  R.  74;  Field  v. 
Gibbs,  1  Peters,  Circ.  R.  155  ;  Aldrich  v.  Kinney,  4  Connect.  R.  380  ; 
Shumway  v.  Stillman,  6  Wend.  R.  447  ;  Hall  v.  Williams,  6  Pick.  247  ; 
Starbuck  v.  Murray,  5  Wend.  R.  148  ;  Davis  v.  Peckars,  6  Wend.  R. 
327  ;  Bultrick  v.  Allen,  8  Mass.  R.  273  ;  Pawling  v.  Bird's  Ex'rs,  13 
Johns.  R.  192 ;  Rathbone  v.  Terry,  1  Rhode  Island,  R.  73  ;  Hitchcock  v. 
Aicken,  1  Cain.  R.  460;  Warton's  Dig.  Judgment,  I.;  Bigelow's  Dig. 
Judgment,  H. ;  Johnson's  Digest,  Debt,  H. ;  Coxe's  Digest,  Judgment  ; 
Hoxie  V.  Wright,  2  Vermont,  Rep.  263  ;  Bellows  v.  Ingraham,  2  Ver- 
mont, R.  575  ;  Barney  V.  Patterson,  6  Harris  &  Johns.  182. 

1  See  Noyes  v.  Butler,  6  Barb.  S.  C.  R.  613. 

2  Wood  V.  Watkinson,  17  Conn.  500  ;    Welch  v.  Sykes,    3  Gilman, 
197. 

3  Constitution,  Art.  3,  ^  4  ;  Act  of  Congress  of  26th  May,  1790,  ch.  1  1  ; 
3  Story's  Comm.  on  Constit.  ch.  29,  ^  1297  to  1307. 

"*  Niblett  V.  Scott,  4  Louis.  Ann.  R.  246  ;  Barney  v.  Patterson,  6  H.  & 
J.  182. 


CH.  XV.]  FOREIGN   JUDGMENTS.  1001 

the  same  footing  as  domestic  judgments.^  But  this 
does  not  prevent  an  inquiry  into  the  jurisdiction  of  the 
Court  in  which  the  original  judgment  was  rendered,  to 
pronounce  the  judgment,  nor  an  inquiry  into  the  right 
of  the  State  to  exercise  authority  over  the  parties,  or 
the  subject-matter,  nor  an  inquiry,  whether  the  judg- 
ment is  founded  in,  and  impeachable  for  a  manifest 
fraud.^  The  Constitution  did  not  mean  to  confer  any 
new  power  upon  the  States  ;  but  simply  to  regulate  the 
effect  of  their  acknowledged  jurisdiction  over  persons 
and  things  within  their  territory.^  It  did  not  make  the 
judgments  of  other  States  domestic  judgments  to  all  in- 
tents and  purposes ;  ^  but  only  gave  a  general  validity, 
faith,  and  credit  to  them,  as  evidence.  No  execution 
can  issue  upon  such  judgments  without  a  new  suit  in 
the  tribunals  of  other  States.^  And  they  enjoy  not  the 
right  of  priority,  or  privilege,  or  lien,  which  they  have 
in  the  State  where  they  are  pronounced,  but  that  only 
which  the  Lex  fori  gives  to  them  by  its  own  laws  in 
their  character  of  foreign  judgments.*^ 

^  [Without  this  act  judgments  of  each  State  would  be  regarded  as  fo- 
reign judgments  in  the  Courts  of  every  other  State.  Dorsey  v.  Maury,  10 
Smedes  &  Marshall,  298.] 

2  Taylor  v.  Bryden,  8  Johns.  R.  173.  See  Cummings  v.  Banks,  2  Bar- 
bour, 602  ;  Davis  v.  Smith,  5  Georgia,  R.  274  ;  Gleason  v.  Dodd,  4  Mete. 
333. 

3  See  Story's  Comment,  on  the  Constit.  ch.  29,  ^  1297  to  1307,  and 
cases  there  cited  ;  Hall  v.  Williams,  6  Pick.  R.  237  ;  Bissell  v.  Briggs, 
9  Mass.  R.  462  ;  Shumway  v.  Stillman,  6  Wend.  R.  447  ;  Evans  v.  Tarl- 
ton,  9  Sergt.  &  R.  260;  Benton  v.  Burgot,  10  Sergt.  &  R.  240;  Han- 
cock V.  Barrett,  1  Hall.  Sup.  Ct.  R.  155  ;  S.  C.  3  Hall,  Sup.  Ct.  R.  302  ; 
Wilson  V.  Niles,  2  Hall,  Sup.  Ct.  R.  358;  Hoxie  v.  Wright,  2  Vermont, 
R.'263  ;  Bellows  v.  Ingraham,  2  Verm.  R.  573  ;  Aldrich  v.  Kinney,  4 
Connect.  R.  380. 

4  See  D'Arcy  r.  Ketchum,  11  How.  U.  S.  R.  165. 

5  [See  the  sound  remarks  of  Mr.  Justice  Redfield,  in  the  late  case  of 
Diraick  v.  Brooks,  21  Vermont,  R.  569,  where  this  subject  is  ably  exa- 
mined.] 

6  [McElraoyle  v.  Cohen,  13  Peters,  R.  312,  328,  329 ;  ante,  ^  582  a, 

84* 


1002  CONFLICT    OF    LAWS.  [CH.  XV. 

[§  600  a.  In  the  sister  States  of  America,  the  effect  of 
a  judgment  in  one  State,  when  relied  upon  as  a  cause 
of  action  in  another,  has  been  frequently  discussed  of 
late,  and  the  tendency  of  modern  decisions  is  to  restrict 
the  force  of  such  judgments  in  the  Courts  of  another 
State.  Thus,  in  a  late  case  in  Ohio,  an  action  was 
brought  on  a  judgment  rendered  in  Pennsylvania.  The 
only  service  in  the  original  suit  was  by  an  attachment 
of  the  defendant's  real  estate  situated  in  the  latter  State. 
The  defendant  himself  had  no  personal  notice  of  the 
suit  and  never  appeared  to  the  action,  either  by  him- 
self, or  by  attorney,  neither  had  he  ever  been  within 
the  State  of  Pennsylvania.^  It  was  determined  that 
such  a  judgment  was  not  even  prima  facie  evidence  of 
debt  in  Ohio.  The  same  doctrine  was  affirmed  in  a 
still  later  case,^  in  the  State  of  Maine,  where  it  was 
also  determined  that  no  action  could  be  maintained  in 
that  State,  upon  a  judgment  recovered  in  Illinois,  unless 
the  Court  rendering  the  judgment  had  jurisdiction  of 
the  defendant's  p<?r<5W2,  and  that  an  attachment  of  the 
defendant's  property  in  Illinois,  would  not,  of  itself,  give 
the  Courts  of  that  State  jurisdiction  of  the  owner's  per- 
son.] 


note ;  Wood  v.  Watkinson,  17  Conn.  R.  500,  an  elaborate  case  upon  this 
subject. 

1  Arndt  v.  Arndt,  15  Ohio,  R.  33. 

2  McVicker  v.  Beedy,  31  Maine,  R.  310.  In  this  case,  the  original  suit 
was  in  the  Supreme  Court  of  Illinois,  upon  a  contract  made  in  that  State, 
and  the  defendant  at  that  time  residing  there.  Previous  to  the  commence- 
ment of  the  suit  he  removed  to  Maine,  leaving  property  in  the  hands  of  a 
resident  of  Illinois,  which  was  attached  by  the  trustee  process,  and  notice 
of  the  suit  was  published  in  the  newspapers,  according  to  the  statutes  of 
Illinois.  The  defendant,  however,  never  had  actual  notice  of  the  suit,  and 
did  not  appear  to  the  process.  Judgment  being  obtained  upon  his  default, 
and  the  property  attached  being  insufficient  to  satisfy  the  same,  an  action  of 


CH.    XV.]  FOREIGN   JUDGMENTS.  1003 

§  610.  In  the  next  place,  as  to  judgments  inpet'sonam 
in  suits  between  citizens,  in  suits  between  foreigners, 
and  in  suits  between  citizens  and  foreigners.  The  com- 
mon hiw  recognizes  no  distinction  whatever,  as  to  the 
effect  of  foreign  judgments,  whether  they  are  between 
citizens,  or  between  foreigners,  or  between  citizens  and 
foreigners.  In  all  cases  they  are  deemed  of  equal  obli- 
gation, whoever  are  the  parties.  The  cases  which  have 
been  already  cited,  refer  to  no  such  distinction ;  but 
the  same  rules  are  indiscriminately  applied  to  all  per- 
sons. 

[§  610  a.  Another  principle  of  the  common  law,  some- 
what connected  with  the  subject  of  foreign  judgments, 
here  considered,  is  the  doctrine  of  lis  pendens  ;  or  the 
effect  of  the  pendency  of  another  suit,  in  a  foreign  tri- 
bunal, upon  the  same  cause  of  action,  and  between  the 
same  parties.  Many  authorities  ^  consider  such  a  suit 
no  bar,  or  cause  of  abatement,  to  the  second  action,  (as 
would  be  the  case,  were  both  suits  pending  before  the 
same  court) ;  but  the  decisions  are  not  entirely  harmo- 
nious, and  the  question  can  hardly  be  considered  as 


debt  was  brought  in  Maine,  to  recover  the  balance.  The  objection  of  a 
want  of  jurisdiction  in  the  Courts  of  Illinois  was  held  to  be  well  taken,  but 
the  plaintiff  was  allowed  to  amend  on  terms,  and  to  add  a  count  for  the 
original  cause  of  action. 

1  Bowne  u.  Joy,  9  Johns.  11.  221 ;  Walsh  v.  Durkin,  12  Johns.  R.  99  ; 
Russell  V.  Field,  Stuart's  Canada  R.  558  ;  Bayley  v.  Edwards,  3  Swanst. 
703.  And  see  Maule  v.  Murray,  7  Term  R.  470;  Salmon  «.  Wootton,  9 
Dana,  423;  West  Lyndia  v.  McConnelI,5  Miller's  Louis.  R.  244;  Coltr. 
Partridge,  7  Met.  570;  Casey  v.  Harrison,  2  Dev.  N.  C.  R.  244;  Newell 
V,  Newton,  10  Pick.  R.  470.  But  if  it  be  so,  the  plaintiffs  to  each  suit  must 
be  the  same,  and  the  defendants  the  same.  If  the  parties  are  reversed  in  the 
foreign  action,  the  pendency  of  such  suit  is  no  cause  of  abatement  to  the 
second,  although  both  bo  for  the  same  cause.  Wadleigh  v.  Veazie,  3  Sum- 
ner, 165. 


1004  CONFLICT    OP   LAWS.  [CH.  XV. 

fully  settled.^  In  proceedings  in  rem,  there  ma}^  be 
good  reason  for  holding,  that  a  suit  pending  in  a  fo- 
reign tribunal,  is  good  cause  of  abatement  to  a  suit  sub- 
sequently commenced  for  the  same  property.-] 

§  611.  We  have  hitherto  been  principally  consider- 
ing the  doctrines  of  the  common  law.  But  it  cannot  be 
affirmed,  that  the  same  doctrines  are  generally  main- 
tained, either  by  foreign  Courts,  or  by  foreign  Jurists. 
Many  foreign  Jurists  contend  for  the  doctrine  of  Vat- 
tel,  that  the  judgments  of  a  foreign  competent  tribunal 
are  to  be  held  of  equal  validity  in  every  other  country.^ 
Thus  Huberus  lays  down  the  rule ;  Cunda  negotia  et 
acta,  tarn  injiidicio  quam  extra  judicium,  sive  moiiis  causa, 
sive  inter  vivos,  secundum  jus  certi  hci  nte  celebrata,  valent, 
etiam  uU  diver sa  juris  observatio  viget,ac  uhisicinita,  quem- 
admodum  facta  sunt,  non  valerunt^  And  again  ;  Simi- 
lem  usiim  hahet  Jiwc  observatio  in  rebus  judicatis,  Senten- 
tia  in  aliquo  loco  j^ronimciata,  vel  delicti  venia,  db  eo,  qui  ju- 
risdictionem  illam  Jiabet,  data,  ubique  Jiabet  effectum ;  nee 
fas  est  alterius  EeijJiiblicce  magistratibiis,  Ileum  alibi  abso- 
lutum,  veniave  donatimi,  licet  absque  justa  causa  loersequi, 
aut  iterum  2^ermittere  recusandimi,  &c.  Idem  obtinet  in  sen- 
tentiis  rerum  civilium.^     The  same  doctrine  seems  equally 


1  The  following  authorities  incline  to  consider  such  a  suit  good  cause  of 
abatement.  Balch,  ex  parte,  3  McLean,  221  ;  Hart  v.  Granger,  1  Conn. 
R.  154;  Rolph  v.  Brown,  3  Watts  &  Serg.  399,  Gibson,  C.  J. 

2  2  Kent's  Com.  122:  Taylor  v.  Royal  Saxon,  Wallace,  Jr.  C.  C.  R. 
311  •,  Le  Chevalier  v.  Lynch,  Doug.  170;  Embree  v.  Collins,  5  Johns. 
101 ;  Carrol  v.  McDonough,  10  Martin,  609.  See  Lewis  ?;.  Mew,  1  Strob- 
hart,  Eq.  R.  180;  Smith  v.  Mcl%er,  9  Wheaton,  532;  The  Ship  Robert 
Fulton,  1  Paine,  G20  ;  Slyhoof  r.  Flitcraft,  1  Ashmead,  171. 

3  Henry  on  Foreign  Law,  75,  76. 

•i  Huberus,  Tom.  2,  Lib.  1,  tit.  3,  De  Conflict.  Leg.  ^  3. 
s  Idem,  ^  6. 


CH.  XV.]  FOREIGN    JUDGMENTS.  1005 

well  founded  in  the  expressive  language  of  the  Roman 
law.     Res  judicata  pro  veritate  accipikir? 

§  612.  D'Argentre  holds  the  like  opinion.  Nam  de  omni 
■personali  ncgotlo,  judicis  ejus  cognitiouem  esse,  cui  persona 
sulsit,  sic,  ut  cpiociinqiie  p)ersona  aleat,  id  jus  sit,  quod  ille  sta- 
tuerit?  Gain  asserts,  that  any  other  rule  would  involve 
absurdity.  Ahsurdim  enimfore,  si  post  senteniiam  cJejiniti- 
vam  alia  esset  ferenda  scnteniia,  et  processum  in  infinitum 
extrahi  litcmque  ex  lite  oriri  delere?  John  Voet  maintains 
a  similar  opinion  in  all  suits  except  those  respecting 
immovables.  Licet  autem  regulariter  Judex  requisitus  non 
cognoscat  de  justitid  senteniico  per  altermn  Judiccm  latce,  nee 
earn  ad  examen  penitius  revocet ;  sed  pro  justitid  ejus  ex 
ceqidtate  prwsumat ;  tamen,  si  animadvertat,  earn  directo 
contra  sui  territorii  statuia  Mam  esse  circa  res  immoUles  in 
suo  territorio  sitas,  eandem  non  cxsequetiir} 

§  613.  There  are,  however,  other  foreign  jurists,  who 
maintain  a  very  different  opinion.^  We  have  already 
had  occasion  to  take  notice  of  the  doctrines  of  Boulle- 
nois  upon  the  right  of  jurisdiction ;  ^  and  he  applies 
them  in  an  especial  manner  to  the  authority  of  foreign 
judgments.     In  regard  to  judgments  in  rem,  or  partly 


1  Dirr.  Lib.  1,  tit.  5,  1.25. 

2  D'Argentr.  Comm.  ad  Leg.  Briton,  art.  218  ;  Gloss.  6,  n.  47,  p.  G65, 
edit.  IGIO  ;  Henry  on  Foreign  Law,  p.  74  ;  1  BouUeneis,  Observ.  25,  p. 
605. 

3  Henry  on  Foreign  Law,  p.  74,  75;  Gaill,  Pract.  Observ.  Lib.  1,  Ob- 
serv. 113,  n.  11,  p.  201  ;  1  BouUenois,  Observ.  25,  p.  G05,  COG.  —  There  is 
an  error  in  the  reference  of  BouUenois  to  Gaill.  It  should  be  to  Observ. 
113,  instead  of  123. 

4  J.  Voet,  ad  Pand.  Tom.  2  Lib.  42,  tit.  1,  n.  41,  p.  788. 

5  See  1  BouUenois,  Observ.  25,  p.  GOl  to  p.  G50;  3  Burge,  Comm.  on 
Col.  and  For.  Law,  Pt.  2,  ch.  24,  p.  1050  ;  Id.  p.  1050  to  p.  lOGO  ;  Id.  p. 
1062  to  1076. 

6  5  Ante,  ^  552. 


1006  CONFLICT    OF  LAWS.  [CH.   XV. 

in  rem,  or  partly  in  rem  and  partly  in  personam,  lie  deems 
the  jurisdiction  to  belong  exclusively  to  the  tribunals  of 
the  place  rei  sitce,  and,  consequently,  that  the  judgment 
rendered  there,  ought  to  be  of  universal  obligation.^ 
But,  in  regard  to  judgments  in  personal  actions,  he 
makes  the  following  distinctions.  If  the  foreign  judg- 
ment is  in  a  suit  between  natives  of  the  same  country 
in  which  it  is  pronounced,  and  it  is  rendered  by  a  com- 
petent tribunal,  in  such  a  case  it  ought  to  be  executed 
in  every  other  country  without  any  new  inquiry  into 
the  merits.^  The  reason  assigned  is,  that  the  judgment 
has  emanated  from  a  lawful  authority,  and  has  been  ren- 
dered between  persons,  who  are  subject  to  that  author- 
ity ;  and  consequently,  the  judgment  ought  not  to  be 
submitted  to  examination  or  discussion  in  any  other 
tribunal,  which  for  such  purposes  must  be  wholly  in- 
competent. If  the  foreign  judgment  is  rendered  in  a 
suit  between  mere  strangers,  who  are  foreigners  found 
within  the  territorial  authority  of  the  court  rendering  it, 
and  the  jurisdiction  is  rightfully  exercised  over  the 
parties,  in  such  a  case  the  judgment  is  equally  conclu- 
sive, and  not  examinable  by  any  other  tribunal.^  But 
he  thinks,  that  the  jurisdiction  cannot  be  rightfully  ex- 
ercised, merely  because  the  foreigners  are  there,  unless 
they  are  domiciled,  and  have  made  themselves  subject 
to  the  laws,  or  have  made  some  contract  there,  or  some 
contract  to  be  executed  there,  which  is  the  subject-mat- 
ter of  the  suit.^  Lastly,  if  the  judgment  is  rendered  in 
a  suit  between  a  native  of  the  country  where  the  judg- 


1  1  BouUenois,  Observ.  25,  p.  618,  619,  620  to  624  ;  Id.  p.  635,  636. 

2  1  BouUenois,  Observ.  25,  p.  603,  605. 

3  1  BouUenois,  Observ.  25,  p.  607,609. 

^  1  BouUenois,  Observ.  25,  p.  600  to  p.  610. 


CH.  XV.]  FOREIGN    JUDGMENTS.  1007 

merit  is  pronounced,  and  a  foreigner,  in  such  a  case,  if 
the  foreigner  be  the  plaintiff,  then  the  judgment  ought 
to  be  conckisive,  and  not  examinable,  whether  the  fo- 
reigner has  been  successful, or  unsuccessful  in  his  claim; 
for,  in  such  a  case,  the  suit  is  brought  before  the  proper 
forum,  according  to  the  maxim,  Actor  seqiiitur  forum  Rei, 
and  then  Standiim  est  in  judicio  ;  and  the  execution  of 
the  judgment  ought  to  be  every^Yhere  held  perfect  and 
entire  without  any  new  examination.^  But  if  the  fo- 
reigner be  the  defendant,  and  he  has  not  entered  into 
an}^  contract  in  the  place,  where  the  suit  is  brought,  or 
into  any  contract,  which  is  to  be  performed  there,  and 
which  is  the  subject-matter  of  the  suit ;  in  such  a  case 
the  judgment  is  not  conclusive  against  the  defendant.^ 

§  614.  Boullenois  concludes  his  remarks  upon  this 
subject  in  the  following  manner.  "  When,  then,  some 
of  our  authors  say,  that  foreign  judgments  are  not  to  be 
executed  in  France,  and  that  it  is  necessary  to  com- 
mence a  new  action,  that  is  true  without  any  exception 
in  all  matters  touching  the  realty.  It  is  also  true  in 
personal  matters,  when  the  defendant  is  a  Frenchman, 
who  has  not  contracted  in  the  foreign  country,  nor  pro- 
mised to  pay  there,  nor  submitted  himself  voluntarily 
to  the  foreign  jurisdiction ;  for  in  such  a  case  a  new 
action  should  be  brought,  saving  the  right  to  demand  a 
provisional  execution  of  the  foreign  judgment.  But,  in 
the  other  cases  above  mentioned,  the  judgment  ought 
to  be  executed  without  a  new  action."  ^ 


1  1  Boullenois,  Observ.  25,  p.  609. 

2  1  Boullenois,  Observ.  25,  p.  610,  617. 

3  1  Boullenois,  Observ.  25,  p.  640.  —  Toullier  has  commented  upon  and 
denied  the  distinctions  of  Boullenois,  as  not  being  well  founded  in  French 
jurisprudence.     10  Toullier,  Droit  Civ.  Frang.  ch.  6,  ^  3,  p.  83. 


1008  CONFLICT    OF   LAWS.  [CH.  XV. 

§  615.  There  was  in  France  an  ancient  Ordinance 
(in  1629,)  one  article  of  which  expressly  declared,  that 
judgments,  rendered  in  foreign  countries  for  any  cause 
whatever,  should  not  be  executed  within  the  realm,  and 
that  subjects  against  whom  they  were  rendered  might 
contest  their  rights  anew  throughout  France.^ 

§  616.  Emerigon  says,  that  judgments  rendered  in 
foreign  countries  against  Frenchmen  are  not  of  the 
slightest  weight  in  France ;  and  that  the  causes  must 
be  there  litigated  anew.  In  support  of  this  statement 
he  quotes  the  remark  of  D'Aguesseau,  that  it  is  an  invio- 
lable maxim,  that  a  Frenchman  can  never  be  transferred 
to  a  foreign  court.  C'est  une  maxime  inviolaUe,  qihin 
Francais  ne  pent  jamais  etre  tradidt  devant  wi  j'uge  etran- 
ger?  Immediately  afterwards  Emerigon  adds,  that  it  is 
the  same,  as  to  foreign  judgments  rendered  in  favor  of 
a  foreigner  against  a  foreigner  domiciled  in  France. 
He  then  proceeds  to  remark,  that  it  is  only  in  suits  be- 
tween foreigners  not  domiciled  in  France  that  a  fo- 
reign judgment  will  be  executed  in  France.  The  rule 
equally  applies,  whether  the  Frenchman  be  plaintiff  or 
be  defendant  in  the  cause.  But,  on  the  other  hand,  a 
Frenchman  may  sustain  a  suit  in  the  French  courts 
against  a  foreigner,  and  the  judgment  rendered  by  such 
foreigner  may  be  executed  against  his  property  in 
France.  Emerigon,  however,  admits,  that  the  rule  is 
not  eXjCmpt  from  doubt,  and  has  been  much  contro- 
verted ;  for  the  maxim,  Actor  seqidtur  forum  Rei,  belongs 


1  1  Boullenois,  Observ.  25,  p.  G46  ;  2  Kent,  Comm.  Lect.  37,  p.  121, 
122,  note,  3d  edit.  See  10  TouUier,  Droit  Civ.  Franc,  in  ch.  6,  ^  3,  n. 
82,  83. 

~  D'Aguesseau,  CEuvres,  Tom.  5,  p.  87,  4to  edit. 


i 


CH.  XV.]  FOREIGN   JUDGMENTS.  1009 

to  the  law  of  nations.^     Vattel  affirms  the  same  maxim 
in  explicit  terms.^ 

§  617.  The  doctrine  thus  promulgated  by  Emerigon 
has  continued  down  to  a  very  recent  period.^'  But  by 
the  present  Code  of  France  the  Ordinance  of  1629  seems 
to  be  abolished  ;  and  foreign  judgments  are  now  deemed 
capable  of  execution  in  that  country.'  But  the  merits 
of  the  judgment  are  examinable  ;  and  no  distinction 
seems  to  be  made,  whether  the  judgment  is  in  a  suit 
between  foreigners,  or  between  Frenchmen,  or  between 
a  foreigner  and  a  Frenchman  ;  or  whether  it  is  in  ftivor 
of  one  party,  or  of  the  other;  or  whether  it  is  rendered 
upon  defliult,  or  upon  confession,  or  upon  a  full  trial 
and  contestation  of  the  merits.^  Toullier  considers  it 
as  now  the  established  jurisprudence  of  France,  that  no 
foreign  judgment  can  be  rendered  executory  in  France, 
but  upon  a  full  cognizance  of  the  cause  before  the 
French  tribunals,  in  which  all  the  original  grounds  of 
the  action  are  to  be  debated  and  considered  anew.<5 
And  he   adds,  that  the    same   principle  is  applied   to 


1  Em6rigoa  Traite  des  Ass.  Tom.  1,  ch.  4,  ^  8,  n.  2,  p.  122,  123  ;  2 
Kent,  Comm.  Lect.  37,  p.  121,  122,  note,  3d  edit.  — The  same  doctrine 
is  explicitly  avowed  to  be  the  law  of  France  in  many  other  authorities. 
See  Henry  on  Foreign  Law,  Appx.  20'J. 

2  Vattel,  B.  2,  ch.  8,  §  103. 

3  Merlin,  R6pertoire,  Jugement,  ^  6;  Id.  Etranger,  ^  2  to  ^5;  Id. 
Questions  de  Droit,  Jugement,  ^  14;  2  Kent,  Comm.  Lect.  37,  p.  121, 
122,  note,  3d  edit. ;  10  Toullier,  Droit  Civ.  Franc,  ch-  6,  ^  3,  p.  76,  81, 
82,  86. 

4  Codede  Procedure  Civile,  art.  516;  Code  Civil,  art.  2123,  2128;  10 
Toullier,  Droit  Civ.  Franc,  ch.  6,  ^  3,  n.  76,  77,  78,  84,  85,  86. 

5  10  Toullier,  Droit  Civ.  Franc,  ch.  6,  ^  3,  n.  76,  77,  78,  80,  81,  84, 
85,  86  ;  Pardessus,  Droit  Comm.  Tom.  5,  art.  1488;  3  Burge,  Comm.  on 
Col.  and  For.  Law,  Pt.  2,  ch.  24,  p.  1048,  1049. 

6  Id.  n.  85,  86;  2  Kent,  Comm.  Lect.  37,  p.  121,  122,  note,  3d  edit. ; 
Pardessus,  Droit  Comm.  Tom.  5,  art.  1488. 

CONFL.  85 


1010  CONFLICT    OF    LAWS.  [CH.  XV. 

cases,  where  foreign  judgments  are  set  up  by  the  de- 
fendant by  way  of  bar  to  a  new  action.  The  judgments 
are  equally  reexaminable  upon  the  merits.^ 

§  618.  It  is  difficult  to  ascertain,  what  the  prevailing 
rule  is  in  regard  to  foreign  judgments  in  some  of  the 
other  nations  of  continental  Europe  ;  whether  they  are 
deemed  conclusive  evidence,  or  only  prima  facie  evi- 
dence. Holland  seems  at  all  times,  upon  the  general 
principle  of  reciprocity,  to  have  given  great  weight  to 
foreign  judgments,  and  in  many  cases,  if  not  in  all 
cases,  to  have  given  to  them  a  weight  equal  to  that 
given  to  domestic  judgments,  wherever  the  like  rule  of 
reciprocity  with  regard  to  Dutch  judgments  has  been 
adopted  by  the  foreign  countrj^,  whose  judgment  is 
brought  under  review.  This  is  certainly  a  very  reason- 
able rule  ;  and  may,  perhaps,  hereafter  work  itself  firmly 
into  the  structure  of  international  jurisprudence.^ 


1  10  Toullier,  Droit  Civ.  Franc,  ch.  6,  ^  3,  n.  76  to  86  ;  Merlin,  Reper- 
toire, Jugement,  ^  6  ;  Id.  Questions  de  Droit,  Jugement,  §  14  ;  Pardessus, 
Droit  Com,  Tom.  5,  art.  1488;  2  Kent,  Comm.  Lect.  37,  p.  118  to  121, 
3d  edit. 

2  Henry  on  Foreign  Law,  ch.  10,  ^  2,  p.  75,  76;  Id.  Appx.  p.  209  to 
p.  214. 


CH.    XVI.]  TENAL   LAWS    AND    OFFENCES.  1011 


CHAPTER  XVI. 

PENAL   LAWS    AND    OFFENCES. 

§  619.  We  are  next  led  to  the  consideration  of  the 
operation  of  foreign  Laws  in  regard  to  penalties  and 
offences.  And  this  will  not  reqmre  any  expanded  ex- 
amination, as  the  topics  are  few,  and  the  doctrines 
maintained  by  foreign  jurists  and  by  tribunals  acting 
under  the  common  law  involve  no  intricate  inquiries 
into  the  peculiar  jurisprudence  of  different  nations. 

§  620.  The  common  law  considers  crimes  as  al- 
together local,  and  cognizable  and  punishable  exclu- 
sively in  the  country,  where  they  are  committed.^  No 
other  nation,  therefore,  has  any  right  to  punish  them  ; 
or  is  under  any  obligation  to  take  notice  of,  or  to  en- 
force any  judgment,  rendered  in  such  cases  by  the  tri- 
bunals, having  authority  to  hold  jurisdiction  within  the 
territory,  where  they  are  committed.^  Hence  it  is,  that 
a  criminal  sentence  of  attainder  in  the  courts  of  one 
sovereign,  although  it  there  creates  a  personal  disability 
to  sue,  does  not  carry  the  same  disability  with  the  per- 
son into  other  countries.     Foreign  jurists,  indeed,  mam- 


i  «' 


-  •  Crimes  (said  Lord  Chief  Justice  De  Grey,  in  Rafael  v.  Yerelst,  2 
Win.  Blaciv.  R.  1058)  are  in   their  nature  local,  and  the  jurisdiction  of 

crimes  is  local."  t.  o     t    •> 

2  Rmherf.  Tnst.  B.  2,  ch.  9,  §  12  ;  Martens,  Law  of  Nations,  L.  3,  ch.  o, 
^  2-2,  23,  24,  25  ;  Merlin,  Repertoire,  So6verainet6,  ^  5,  n.  5,  G,  p.  379  to 
382  \  Commonwealth  v.  Green,  17  Mass.  R.  515,  545,  546,  547,  548. 


1012  CONFLICT    OF    LAWS.  [CH.    XVL 

tain  on  this  particular  point  a  different  opinion,  holding, 
that  the  state  or  condition  of  a  person  in  the  place  of 
his  doraicil  accompanies  him  everywhere.^  Lord  Lough- 
borough in  declaring  the  opinion  of  the  Court  on  one 
occasion  said ;  "  Penal  laws  of  foreign  countries  are 
strictly  local,  and  affect  nothing  more  than  they  can 
reach,  and  can  be  seized  by  virtue  of  their  authority. 
A  fugitive,  who  passes  hither,  comes  with  all  his  transi- 
tory rights.  He  may  recover  money  held  for  his  nse, 
and  stock,  obligations,  and  the  like ;  and  cannot  be  af- 
fected in  this  country  by  proceedings  against  him  in 
that,  which  he  has  left  beyond  the  limits  of  which  such 
proceedings  do  not  extend."  ^  Mr.  Justice  Buller,  in  the 
same  case,  on  a  writ  of  error  said  ;  "  It  is  a  general  prin- 
ciple, that  the  penal  laws  of  one  country  cannot  be  taken 
notice  of  in  another."  ^  The  same  doctrine  was  affirmed 
by  Lord  EUenborough  in  a  subsequent  case.^  And  it 
has  been  recently  promulgated  by  Lord  Brougham,  in 
very  clear  and  authoritative  terms.  "  The  Lex  loci 
(says  he)  must  needs  govern  all  criminal  jurisdiction 
from  the  nature  of  the  thing  and  the  purpose  of  the 
jurisdiction."  ^ 


1  Ante,  ^  91,  92  ;  1  Hertii  Opera,  de  Collis.  Leg.  §  4,  n.  8,  p.  124,  edit. 
1737;  Id.  p.  175,  edit.  1716;  1  Boullenois,  Obs.  4,  p.  64,  65.  — Boullenois 
states  this  doctrine  in  strong  terms.  "A  I'egard  des  statuts,  qui  pro- 
noncenl  unc  morte  civile  pour  crimes,  ou  une  note  d'infamie,  I'elat  de  ces 
miserables  se  porte  par  tout,  independament  de  tout  domicile  ;  et  cela  par 
un  concert  et  un  concours  general  des  nations,  ces  sortes  de  peines  etant 
une  tache,  une  plaie  incurable,  dent  le  condamn6  est  afflig6,  et  qui  I'ac- 
compagne  en  tous  lieux.  C'est  ce  que  dit  D'Argentre."  1  Boullenois, 
Ohserv.  4,  p.  64,  65. 

2  Folliott  V.  Ogden,  1  H.  Black,  p.  135. 

3  Oaden  V.  Folliott,  3  T.  R.  733,  734. 

4  WoKFi'.  Oxholm,  G  M.  &  Selw.  R.  99. 

5  Warrender  v.  Warrender,  9  Bligh,  119,  120. 


CH.    XVI.]  PENAL    LAWS    AND    OFFENCES.  1013 

§  621.  The  same  doctrine  has  been  frequently  re- 
cognized in  America.  On  one  occasion,  where  the  sub- 
ject underwent  a  good  deal  of  discussion,  Mr.  Chief 
Justice  Marshall,  in  delivering  the  opinion  of  the  Su- 
preme Court,  said  ;  "  The  Courts  of  no  country  execute 
the  penal  laws  of  another."  ^  On  another  occasion,  in 
New  York,  Mr.  Chief  Justice  Spencer  said  ;  "  We  are 
required  to  give  effect  to  a  law  (of  Connecticut,)  which 
inflicts  a  penalty  for  acquiring  a  right  to  a  chose  in 
action.  The  defendant  cannot  take  advantage  of,  nor 
expect  the  Court  to  enforce,  the  criminal  laws  of  ano- 
ther State.  The  penal  acts  of  one  State  can  have  no 
operation  in  another  State.  They  are  strictly  local,  and 
affect  nothing  more  than  they  can  reach."  ^  Upon  the 
same  ground  also,  the  Supreme  Court  of  Massachusetts 
have  held,  that  a  person  convicted  of  an  infamous  of- 
fence in  one  State,  is  not  thereby  rendered  incompetent 
as  a  witness  in  other  States.^  [So,  in  a  late  case  in 
Chancery,''  a  foreigner  in  England  was  not  allowed  to 
withhold  certain  documents,whose  production  was  sought 
by  a  bill  of  discovery,  upon  the  plea  that  their  contents 
would  render  him  liable  to  the  penal  laws  of  his  own 
country ;  they  having  no  such  effect  in  England,  and 
the  courts  of  the  latter  country  having  no  regard  to  the 
penal  laws  of  a  foreign  State.] 

§  G22.  The  same  doctrine  is  stated  by  Lord  Kames  as 
the  doctrine  in  Scotland.  "  There  is  not  (says  he)  the 
same  necessity  for  an  extraordinary  jurisdiction  to  punish 


J  The  Antelope,  10  AVheat.  R.  66,  1:23. 

2  Scoville  V.  Canfielil,  M  Johns.  R.  338,  340.     See  also  The  State  v. 
Knight,  Taylor's  N.  C.  Rep.  65. 

3  Commonwealth  v.  Green,  17  Mass.  R.  515,  510,  511,  516,  517. 

4  King  of  Two  Sicilies  v.  Willcox,  1  Simons,  N.  S.  301. 

85* 


1014  CONFLICT    OF   LAWS.  [CH.  XVL 

foreign  delinquencies.  The  proper  place  for  punisli- 
ment  is,  where  the  crime  is  committed.  And  no  so- 
ciety takes  concern  in  any  crime,  but  what  is  hurtful  to 
itself."  1 

§  623.  The  same  doctrine  is  laid  down  by  Martens, 
as  a  clear  principle  of  the  law  of  nations.  After  re- 
'  marking,  that  the  criminal  power  of  a  country  is  con- 
fined to  the  territory,  he  adds ;  "  By  the  same  principles 
a  sentence,  which  attacks  the  honor,  rights,  or  property 
of  a  criminal,  cannot  extend  beyond  the  Courts  of  the 
territory  of  the  sovereign  who  has  pronounced  it.  So 
that  he,  who  has  been  declared  infamous,  is  infamous  in 
fact,  but  not  in  law.  And  the  confiscation  of  his  pro- 
perty cannot  affect  his  property  situate  in  a  foreign 
country.  To  deprive  him  of  his  honor  and  property 
judicially  there  also,  would  be  to  punish  him  a  second 
time  for  the  same  offence."  ^ 

§  624.  Pardessus  has  affirmed  a  similar  principle. 
"In  all  the  States  of  Christendom,,  (says  he,)  by  a  sort 
of  general  consent  and  uniformity  of  practice,  the  pro- 
secution and  punishment  of  penal  offences  are  left  to 
the  tribunals  of  the  country,  where  they  are  committed. 
The  principle  of  the  French  Legislation,  that  the  laws 
of  police  and  bail  are  obligatory  upon  all,  who  are 
within  the  territory,  is  a  principle  of  common  right  in 
all  nations."  "  Bouhier  also  admits  the  locality,  or,  as 
he  terms  it,  the  reality  of  penal  laws  ;  and  of  course  he 
limits  their  operation  to  the  territory  of  the  sovereignty, 
within  which  they  are  committed.'* 

^  Karnes  on  Equity,  B.  3,  ch.  8,  ^  L     See  also  Ersk.  Inst.  B.  1,  tit.  2, 
p.  23. 

~  Martens,  Summary  of  the  Law  of  Nations,  B.  3,  ch.  3,  ^  24,  25. 

3  Pardessus,  Droit.  Comm.  5,  art.  1407.     See  also  Merlin,  Repertoire, 
Souv6rainet6,  ^  5,  n.  5,  6,  p.  37'J  to  382. 

Bouhier,  Cout.  de  Bourg.  ch.  34,  p.  588.     See  also  Matthaei  Comm. 


en.    XVI.]  PENAL   LAWS    AND    OFFENCES.  1015 

§  625.  On  the  other  hand  Tlertius,  and  Paul  Voet, 
seem  to  maintain  a  different  doctrine,  holding,  that 
crimes  committed  in  one  state  may,  if  the  criminal  is 
found  in  another  state,  be  upon  demand  punished  there.^ 
Paul  Voet  says ;  Slatutum  personale  iibiquc  locorum  per- 
sonam comikdur,  d:c.,  etiam  in  ordine  ad  panam  a  cive  pe- 
tcndam,  si pcena  civibus  sit  imposita?  And  he,  as  "well  as 
some  others  of  the  foreign  jurists,  enters  into  elaborate 
discussions  of  the  question,  whether,  if  a  foreign  fugitive 
criminal  is  arrested  in  another  country,  he  is  to  be  pu- 
nished according  to  the  law  of  his  domicil,  or  according 
to  the  law  of  the  place,  where  the  offence  was  commit- 
ted.^ If  any  nation  should  suffer  its  own  courts  to  en- 
tertain jurisdiction  of  offences  committed  by  foreigners 
in  foreign  countries,  the  rule  of  Bartolus  would  seem  to 
furnish  the  true  answer.  Delida  pimiiintur  juoda  mores 
loci  commissi  delicli,  et  nan  loci,  uhi  de  crimine  cognoscitiir^ 


ad  Pand.  Lib.  48,  tit.  20,  ^S  17,  18,  20.—  Mr.  Hallam  has  remarked  ;  "Tiie 
death  of  Servetus,  has,  perhaps,  as  many  circumstances  of  aggravation, 
as  any  execution  for  heresy,  that  ever  look  place.  One  of  these,  and 
among  the  most  striking,  is,  that  he  was  not  the  subject  of  Geneva,  nor 
domiciled  in  the  city,  nor  had  the  Chrislianissima  Restitutio  been  pub- 
lished there,  but  at  Vienne.  According  to  our  laws,  and  those,  I  be- 
lieve, of  most  civilized  nations,  he  was  not  answerable  to  the  tribunals  of 
the  republic."  Hallam's  Introduction  to  the  Literature  of  Europe,  Vol.  2, 
(Lond.  edit.  1839,)  cap.  2,  ^  27,  p.  109. 

^  Hertii,  Opera,  De  Collis.  Leg.  ^  4,  n.  18  to  n.  21,  p.  130  to  133,  edit. 
1737  ;  Id.  p.  185  to  188,  edit.  1716. 

2  P.  Voet,  de  Statut.  ^  4,  ch.  2,  n.  6,  p.  123,  edit.  1715  ;  Id.  p.  138,  edit. 
1601.  See  Id.  ^  11,  ch.  1,  n.  4,  5,  p.  294  to  296,  edit.  1715;  Id.  p.  355  to 
360,  edit.  1761. 

3  See  I  Hertii,  Opera,  De  Collis.  Leg.  ^4,  n.  19  to  n.  21,  p.  131, 132.  edit. 
1737;  Id.  p.  185  to  188,  edit.  1716;  P.  Voet  de  Stat.  ^  ll,cii.  1,  ^  1,4,5, 
p.  291  to  297,  edit.  1715;  Id.  p.  355  to  360,  edit.  1661. 

4  Henry  on  Foreign  Law,  p.  47.  —  I  quote  the  passage  as  I  find  it  in 
Henry.  Upon  examining  Bartolus  in  the  place  apparently  intended  to  be 
cited  by  IMr.  Henry  (Bartolus,  Comm.  ad  Cod.  Lib.  1,  tit.  1,  lib.  1,  n.  20, 


1016  CONFLICT    OF   LAWS.  [CH.    XVI. 

[§  625  a.  The  doctrine  that  one  State  will  not  notice 
the  penal  laws,  or  revenue  laws  of  another  State,  is, 
however,  to  be  understood  with  some  limitation,  and 
cannot  be  extended  so  far  as  has  sometimes  been  sup- 
posed. Thus,  in  a  late  case  in  New  Hampshire,  a  citi- 
zen of  that  State  brought  an  action  of  trespass  against 
a  citizen  of  Vermont,  to  recover  damages  for  assessing 
the  plaintiff  with  an  illegal  tax,  and  issuing  a  warrant 
against  him  upon  which  he  was  arrested.  The  defend- 
ant relied  upon  a  want  of  jurisdiction  in  the  Courts  of 
New  Hampshire,  to  inquire  into  the  matter.  And  the 
learned  Chief  Justice  Parker,  in  pronouncing  judgment 
upon  this  point  observed :  "  It  is  said  that  the  Court 
will  not  notice  the  penal  laws,  or  the  revenue  laws,  of 
another  State.  But  this  principle  is  not  applicable  in 
this  case,  nor  can  it  be  true  to  that  extent.  There  is 
no  attempt  to  enforce  the  penal  or  revenue  laws  of  Ver- 
mont by  this  action.  If  there  were,  this  could  not  be 
done  through  the  instrumentality  of  the  Courts  of  this 
State ;  as  for  instance,  if  the  attempt  was  to  collect  a  tax. 
assessed  in  Vermont,  by  a  suit  here."  '  It  had  been 
previously  determined  in  Vermont,  that  the  Courts  of 
that  State  would  not  take  C02;nizance  of  an  official  bond 
given  in  New  Hampshire  to  the  Treasurer  of  that  State, 


( 


21 ;  Id.  n.  44  ;  Id.  n.  47,  Tom.  7,  p.  4,  edit.  1G02,)  I  have  not  been  able  to 
find  any  such  language  used  by  Bartolus.  Martens  deems  it  dear,  that 
a  sovereign,  in  whose  dominions  a  criminal  has  sought  refuge,  may,  if 
he  chooses,  punish  him  for  the  offence,  though  committed  in  a  foreign 
country;  though  he  admits,  that  the  more  common  usage  in  modern 
limes  is  to  remand  the  criminal  to  the  country,  where  the  crime  was 
committed.  Martens,  Law  of  Nations,  B.  .S,  ch.  3,  ^  22,  23.  See  also 
Vattel,  B.  2,  ch.  2,  ^  76  ;  Grotius,  de  Jure  Belli  et  Pac.  B.  2,  ch.  21,^  2, 
3,  4,  5  ;  Burlemaqui,  P.  4,  ch.  3,  i^^  24,  25,  2(3.  See  Lord  Brougham's  opi- 
nion in  Warrender  t;.  Warrender,  OBligh,  R.  118,  119,  120. 
1  Henry  v.  Sargeant,  13  New  Hamp.  R.  321. 


CH.  XVI.]  PENAL    LAWS    AND    OFFENCES.  '     1017 

for  the  flxitliful  discharge  of  a  certain  officer's  duties 
under  the  laws  of  New  Hampshire,  when  the  remedy 
sought  was  one  prescribed  only  by  the  laws  of  New 
Hampshire,  and  not  in  accordance  with  the  common 
law.^] 

[§  625  1).  Although  the  penal  laws  of  every  country 
are  in  their  nature  local,  yet  an  offence  may  be  com- 
mitted in  one  sovereignty  in  violation  of  the  laws  of 
another,  and  if  the  offender  be  afterwards  found  in  the 
latter  State,  he  may  be  punished  according  to  the  laws 
thereof,  and  the  fact  that  he  owes  allegiance  to  another 
sovereignty,  is  no  bar  to  the  indictment.  Thus,  in  a 
late  case  in  New  York,^  a  citizen  of  Ohio  had  there  exe- 
cuted a  fraudulent  paper  addressed  to  citizens  of  New 
York,  w4iich  had  been  presented  to  the  latter  in  New 
York,  by  an  innocent  agent,  and  the  fraud  w\as  there 
completed.  The  defendant  being  afterw^ards  indicted  in 
New  York  for  the  offence,  pleaded  that  he  was  a  na- 
tural-born citizen  of  Ohio,  and  owed  allegiance  to  that 
State  ;  that  he  had  never  been  within  the  State  of  New 
York,  and  that  the  fraudulent  paper  was  executed  in 
Ohio.  It  was  determined  this  was  no  answer  to  the 
indictment.] 

§  626.  There  is  another  point,  which  has  been  a  good 
deal  discussed  of  late  ^  and  that  is,  whether  a  nation  is 
bound  to  surrender  up  fugitives  from  justice,  who  es- 
cape into  its  territories,  and  seek  there  an  asylum  from 
punishment.     The  practice  has,  beyond  question,  pre- 


1  Pickering  v.  Fisk,  6  Vermont,  R.    102,  where  the  subject  of  the  hx 
fori  and  the  lex  loci,  is  ably  examined  by  Mr.  Justice  Phelps.     In   Hunt 

c.  Povvnal,  9  Vermont,  411,  it  was  inlimated  that  an  action  could  not  be 
maintained  in  the  Courts  of  that  Slate,  against  a  town  situated  in  a  foreign 
State,  for  an  injury  arising  from  a  defective  highway. 

2  Adams  v.  The  People,  1  Comstock,  R.  173. 


1018  CONFLICT    OF    LAWS.  [CH.  XVI. 

vailed,  as  a  matter  of  comity,  and  sometimes  of  treaty, 
between  some  neighboring  States,  and  sometimes,  also, 
between  distant  States,  having  much  intercourse  with 
each  other. ^  Paul  Yoet  remarks,  that  under  the  Roman 
Empire  this  right  of  having  a  criminal  remitted  for  trial 
to  the  proper  forum  criminis  was  unquestionable.  It 
resulted  from  the  very  nature  of  the  universal  dominion 
of  the  Roman  Laws.  Jure  tamen  civili  notcmdum,  remissi- 
onihus  locum  fuisse  cle  necessitate,  id  reus  ad  locum,  ubi  de- 
liquit,  sic  iKtente  judlce,fuerit  mittendus,  quod  omnes  judices 
uni  sid)essent  imperatori.  Et  omnes idrovincim  Romance  unitcB 
essent  accessorid,  non  princijKditer?  But  he  remarks,  that 
according  to  the  customs  of  almost  all  Christendom, 
(except  Saxony)  the  remitter  of  criminals,  except  in 
cases  of  humanity,  is  not  admitted  ;  and,  when  done,  it 
is  to  be  upon  letters  rogatory,  so  that  there  may  be  no 
prejudice  to  the  local  jurisdiction.  Jloribus  nihilominus 
{lion  tamen  jSaxonicis)  iotius  fere  Oliristianismi,  nisi  ex  hu- 
manitate,  non  sunt  admissce  remissiones.  Quo  casu,  remit- 
tenti  magistratid  cavendum  per  litteras  reversoriales,  ne  actus 
jiirisdictioni  remittentis  idlum  pariat  prcejudicium.  Id  quod 
etiam  in  nostris  Provinciis  JJniiis  est  receptum?  And  he 
adds,  Neque  enim  Provincice  Fcederatce  uni  supremo  pa- 
rent ;  ■*  a  remark  strictly  applicable  to  the  American 
States.  It  is  manifest,  that  he  treats  it  purely  as  a  mat- 
ter of  comity  and  not  of  national  duty. 

§  G27.  It  has,  however,  been  treated  by  other  dis- 
tinguished jurists,  as  a  strict  right,  and  as  constituting 


1  See  Vattel,  B.  2,  ch.  6,^  76. 

2  P.  Voet,  De  Stat.  ^  II,  cli.  1,  n.  6,  p.  297,  edit.  1715;  Id.  p.  353, 
edit.  166 1. 

3  Ibid. 

*  Id.  See  also  Matthtei  Comm.   de  Ciiminibus,  Dig.  Lib.  48,  tit.  14, 
1.  1,  M. 


CH.  xvl]  penal  laws  and  offences.  1019 

a  part  of  the  law  and  usage  of  nations,  that  offenders 
charged  with  a  high  crime,  who  have  fled  from  the 
country  in  which  the  crime  has  been  committed,  should 
he  delivered  up  and  sent  back  for  trial  by  the  sovereign 
of  the  country,  where  they  are  found.  Yattel  mani- 
festly contemplates  the  subject  in  this  latter  view,  con- 
tending that  it  is  the  duty  of  the  government,  where 
the  criminal  is,  to  deliver  him  up,  or  to  punish  him  ; 
and  if  it  refuses  so  tcf  do,  then  it  becomes  responsible, 
as  in  some  measure  an  accomplice  in  the  crime.^  This 
opinion  is  also  maintained  with  great  vigor  by  Grotius,by 
Heineccius,  by  Burlemaqui,  and  by  Uutherforth.-  There 
is  no  inconsiderable  weight  of  common-law  authority  on 
the  same  side ;  and  Mr.  Chancellor  Kent  has  adopted 
the  doctrine  in  a  case  which  called  directly  for  its  de- 
cision.^ 

§  G28.  On  the  other  hand,  Pufendorf  explicity  denies 
it  as  a  matter  of  right.^  Martens  is  manifestly  of  the 
same  opinion,  contending  that,  with  respect  to  crimes 
committed  out  of  his  territories,  no  sovereign  is  obliged 
to  punish  the  criminal  who  seeks  shelter  in  his  domi- 
nions, or  to  execute  a  sentence  pronounced  against  his 


1  Vattel,  B.  2,  ch.  6,  §  76. 

2  Grotius  de  Jure  Belli  et  Pacis,  ch.  21,  i^i  2,  3,  4,  5  ;  Heineccii  Pree- 
lect.  in  Grot.  h.  t.  ;  Burlemaqui,  Pt.  4,  ch.  3,  ^  23  to  ^  29,  p.  258,  259,  edit. 
1763  ;  Rutherf.  Inst.  B.  2,  ch.  9,  ^  12. 

3  In  the  matter  of  Washburn,  4  Johns.  Ch.  R.  100  ;  1  Kent,  Comm. 
Lect.  2,  p.  30,  3d  edit.  ;  Rex  v.  Hutchinson,  3  Keble,  785  ;  Rexr.  Kim- 
berley.  2  Strange,  R.  848  ;  East  India  Company  v.  Campbell,  1  Ves.  Sen. 
246  ;  Miirc  v.  Kaye,  4  Taunton,  R.  31,  per  Heath,  J.  ;  Wynne's  Euno- 
mus.  Dialog.  3,  ^  07;  Lundy's  case,  2  Vent.  II.  314  ;  Rex  v.  Bell,  1  Amer. 
Jurist,  287. 

4  For  this  reference  to  Pufendorf's  opinion,  I  must  rely  on  Burlemaqui 
(Pt.  4,  ch.  3,  ^  23,  24),  not  having  been  able  to  find  it  in  his  Treatise  on 
the  Law  of  Nations.  The  only  reference  to  the  point,  which  I  have  met 
with  in  that  work,  is  in  B.  8,  ch.  3,  ^  23,  24. 


1020  CONFLICT    OF    LAWS.  [CH.  XVL 

person  or  his  property .^  Lord  Coke  expressly  main- 
tains, that  the  sovereign  is  not  bound  to  surrender  np 
fugitive  criminals  from  other  countries,  who  have  sought 
a  shelter  in  his  dominions.^  Mr.  Chief  Justice  Tilgh- 
man  has  adhered  to  the  same  doctrine  in  a  very  elabo- 
rate judgment.^  The  reasoning  of  Mr.  Chief  Justice 
Parker,  in  a  leading  case,^  leads  to  a  similar  conclusion  ; 
and  it  stands  indirectly  confirmed  by  the  opinion  of  a 
majority  of  the  Judges  of  the  Sftpreme  Court  of  the 
United  States  in  a  very  recent  case  of  the  deepest  in- 
terest.^ 


1  Martens,  Law  of  Nations,  B.  3,  ch.  3,  ^  23. 

2  3  Coke,  Inst.  180. 

3  Commonwealths.  Deacon,  10  Serg.  &  R.  125;  3  Story,  Comm.  on 
Constit.  §  1802.  See  also  Merlin,  E6pertoire,  Souv6rainie,  ^  5,  n.  5,  6, 
p.  379  to  p.  382. 

4  Commonwealth  v.  Green,  17  Mass.  R.  515,  540,  541,  546,  547,  548. 

5  Holmes  v.  Jennison,  14  Peters,  R.  540;  Holmes,  ex  parte,  12  Verm. 
R.  631.  — Mr.  Justice  Barbour  maintained  the  same  opinion  in  the  case  of 
Jose  Ferreira  de  Santos,  2  Brock.  R.  493.  Most  of  the  reasoning  on  each 
side  will  be  found  very  fully  collected  in  the  case  of  The  matter  of  Wash- 
burn, 4  Johns.  Ch.  R.  106  ;  that  of  Commonwealth  v.  Deacon,  10  Serg. 
&  Rawle,  123;  Holmes  v.  Jennison,  14  Peters,  R.  540  to  598;  and  that 
of  Rex  11.  Ball,  1  Amer.  Jurist,  297.  The  latter  case  is  the  decision  of  Mr. 
Chief  Justice  Reid  of  Canada.  See  In  re  Joseph  Fisher,  Stuart's  Can.  R. 
245.  See  also  1  Amer.  State  Papers,  175  ;  Cummonweallh  v.  De 
Longchamps,  1  Dall.  111,115  ;  United  States  v.  Davis,  2  Sumner,  R.  482, 
486.  The  subject  respecting  the  restitution  by  our  government  or  extradi- 
tion of  fugitives  from  justice  from  a  foreign  country,  has  been  brought  at 
various  times  before  our  government.  The  various  cases,  and  the  opinions 
of  the  law  officers,  will  be  found  collected  in  the  Executive  Documents, 
House  of  Repr.  No.  199,  26th  Congress,  1st  Sess'on,  1840;  Report  of  Se- 
cretary of  State,  of  May,  1840.  Mr.  W^irt,  in  his  able  opinions  as  Attorney- 
General,  denies  the  right  and  duty.  [As  to  the  mode  of  procedure,  and 
practice  upon  a  warrant  for  a  fugitive  from  justice,  see  Smith,  ex  parte,  3 
McLean,  121.  InreMetzger,  5  New  York  Legal  Obs.  83;  1  Barbour, 
248;  5  How.  176;  In  re  Hayward,  1  Sandf.  701.] 


CH.  xvil]  evidence  and  proofs.  1021 


CHAPTER  XVIL 


EVIDENCE   AND    PROOFS. 


§  G29.  We  come  in  the  last  place  to  the  consideration 
of  the  operation  of  foreign  laws  in  relation  to  evidence 
and  proofs.  And,  here,  independently  of  other  more 
complicated  questions,  two  of  a  very  general  nature 
may  arise.  In  the  first  place,  what  rule  is  to  prevail, 
as  to  the  competency  or  incompetency  of  witnesses  ? 
Is  the  rule  of  the  law  of  the  country  where  the  trans- 
action to  which  the  suit  relates,  had  its  origin,  to  go- 
vern, or  the  law  of  the  country  where  the  suit  is 
brought  ?  In  the  next  place,  what  is  the  rule  which  is 
to  prevail  in  the  proof  of  written  instruments  ?  In  other 
words,  in  what  manner  are  contracts,  instruments,  or 
other  acts  made  or  done  in  other  countries  to  be  proved  ? 
Is  it  sufficient  to  prove  them  in  the  manner  and  by  the 
solemnities  and  proofs  which  are  deemed  sufficient  by 
the  law  of  the  place  where  the  contracts,  instruments, 
or  other  acts,  were  executed  ?  Or  is  it  necessary  to 
prove  them  in  the  manner  and  according  to  the  law  of 
the  place  where  the  action  or  other  judicial  proceeding 
is  instituted  ? 

§  G30.  Various  cases  may  be  put  to  illustrate  these 
questions.  A  contract  or  other  instrument  is  executed 
and  recorded  before  a  Notary  Public  in  a  foreign  coun- 
try, in  which  by  law  a  copy  of  the  contract  or  other  in- 
strument certified  by  him  is  sufficient  to  establish  its 
existence  and  genuineness ;  would  that  certificate  be 
admissible  in  the  courts  of  common  law  of  England  or 

CONFL.  86 


1022  CONFLICT    OF   LAWS.  [CH.   XVIL 

America  to  establish  the  same  facts  ?  ^  Again ;  persons 
who  are  interested,  and  even  parties  in  the  very  suit, 
are  in  some  foreign  countries  admissible  witnesses  to 
prove  contracts,  instruments,  and  other  acts,  material  to 
the  merits  of  the  suit ;  would  they  be  admissible  as 
witnesses  in  suits  brought  in  the  courts  of  common  law 
in  England  and  America,  to  prove  the  like  facts  in  re- 
lation to  contracts,  instruments,  or  other  acts,  made  or 
done  in  such  foreign  countries,  material  to  the  suit  ? 
These  are  questions  more  easily  put,  than  satifactorily 
answered  upon  principles  of  international  jurispru- 
dence. 

§  630.«.  Similar  considerations  may  arise  in  respect 
to  the  rules  as  to  presumptions  de  facto  and  de  jure, 
which  may  be  different  in  different  countries.  Thus, 
for  example,  the  title  to  movable  property  may  depend 
upon  the  question  of  survivorship  of  one  of  two  persons, 
who  both  died  under  the  like  circumstances  ;  as,  for  ex- 
ample, on  board  a  ship  which  foundered  at  sea,  or  was 
totally  lost  with  all  her  crew  by  shipwreck.  Now,  dif- 
ferent countries  may,  and  probably  do,  adopt  different 
presumptions,  as  to  the  survivorship  in  such  calamitous 
circumstances,  founded  upon  considerations  of  the  age, 
or  sex,  or  other  natural  or  even  artificial  grounds  of 
belief  or  presumption.-  What  rule  then  is  to  be  adopt- 
ed ?  The  law  of  the  place  of  domicil  of  the  parties,  or 
the  law  of  the  forum  where  the  suit  is  instituted  ?  On 
one  occasion,  when  a  question  of  this  very  nature  was 


[I  See  Mascardus,  De  Probat.  Vol.  2,  Conclus.  927,  n.  4  to  n.  8,  p.  336, 
[455,  edit.  1731.] 

2  See  Fearne's  Posthum.  Works,  38  ;  The  Case  of  Gen.  Stanwix  and 
Daughter  ;  Code  Civil  of  France,  art.  720,  721,  722  ;  4  Burge,  Comm.  on 
Col.  and  For.  Law,  Pt.  1,  ch.  4,  ^  5,  p.  152,  153. 


CH.  xvil]  evidence  and  proofs.  1023 

before  him,  a  late  learned  Judge  (Sir  William  Grant) 
said ;  "  There  are  many  instances  in  which  principles 
of  law  have  been  adopted  from  the  civilians  by  our 
English  Courts  of  Justice ;  but  none  that  I  know  of,  in 
which  they  have  adopted  presumptions  of  fact  from 
the  rules  of  the  civil  law."  ^ 

§  630  h.  There  are  certain  rules  of  evidence  which 
may  be  affirmed  to  be  generally,  if  not  universally, 
recognized.  Thus,  in  relation  to  immovable  property, 
inasmuch  as  the  rights  and  titles  thereto  are  generally 
admitted  to  be  governed  by  the  Jaw  of  the  situs,  and 
as  suits  and  controversies  touching  the  same  ex  diredo 
properly  belong  to  the  forum  of  the  ^Uus,  and  not  else- 
where, it  would  seem  a  just  and  natural,  if  not  an  irre- 
sistible conclusion,  that  the  law  of  evidence  of  the  situs 
touching  such  rights,  titles,  suits,  and  controversies, 
must  and  ought  exclusively  to  govern  in  all  such  cases.^ 
So,  in  cases  relating  to  the  due  execution  of  wills  and 
testaments  of  immovabl&s,  the  proofs  must  and  ought 
to  be  according  to  the  law  of  the  situs.  So  in  respect 
to  the  due  execution  of  wills  and  testaments  of  mova- 
bles, as  they  are  governed  by  the  law  of  the  domicil  of 
the  testator,  the  proofs  must  and  ought  to  be  according 
to  the  law  of  his  domicil.  By  the  present  law  of  Eng- 
land, a  will  or  testament  of  movable  property,  in  order 
to  be  valid,  must  be  executed  in  the  presence  of  two 
witnesses.  If,  then,  an  Englishman,  domiciled  in  Eng- 
land, should  make  his  will  in  England,  in  the  presence 
of  one  witness  only,  that  will  could  not  be  admitted  to 
proof  in  Scotland  to  govern  movable  property  situate 


1  Mason  v.  Mason,  1  Meriv.  E.  308,  312. 

3  See  TuUochu.  Hartley,  1  Y.  &  M.  New  Cas.  in  Ch.  114,  115. 


1024  CONFLICT    OF   LAWS.  [CH.    XVIL 

there.^  The  like  rule  would  apply  to  a  case  where  the 
will  was  executed  in  the  presence  of  two  witnesses, 
both  or  either  of  whom  were  incompetent  by  the  law  of 
England,  although  competent  by  the  law  of  Scotland. 

§  631.  Similar  principles  may  well  be  applied  to 
many  other  cases.  There  are  certain  formalities  of 
proof,  which  are  required  by  the  laws  of  foreign  coun- 
tries in  regard  to  contracts,  instruments,  and  other  acts 
which  are  indispensable  to  their  validity  there ;  and 
these  are  therefore  held  to  be  of  universal  obligation ; 
and  must  be  duly  proved  in  every  foreign  tribunal,  in 
which  they  are  in  litigation,  before  any  right  can  be 
founded  on  them.^  An  illustration  of  this  doctrine 
may  be  drawn  from  the  known  rule  of  the  common 
law,  that  a  bill  of  exchange  upon  its  dishonor  must  be 
protested  before  a  notary ;  and  if  not  proved  to  be  so 
protested,  no  remedy  can  be  had  against  the  drawer  or 
indorsers.^  Another  illustration  may  be  drawn  from 
the  registration  of  deeds  and  other  instruments,  which 
cannot  be  given  in  evidence  unless  proved  to  be  duly 
registered  according  to  the  Lex  loci  rei  sitce.  Another 
illustration  may  be  drawn  from  cases  of  contract  under 
the  statute  of  frauds,  which  must  be  in  writing,  and 
must  state  a  good  consideration,  in  order  to  be  valid  in 
point  of  legal  obligation  or  evidence.^  Another  illus- 
tration may  be  drawn  from  the  known  doctrine  as  to 
stamps,  by  which  it  is  held,  that  no  instrument  can  be 


1  Yates  V.  Thomson,  3  Clark  &  Finnell.  544,  576,  577. 

2  See  Trasher  v.  Everhart,  3  Gill  &  Johns.  R.  234,  242 ;  ante,  ^  260 
to  ^  263. 

3  See  Boyden  v.  Taylor,  2  Harr.  &  Johns.   396 ;  ante,  §  260  a,  §  360, 
361  ;  Wilcox  V.  Hunt,  13  Peters,  R   378. 

■*  Ante,  §  262,  ^  262  a. 


CH.  XVII.]  EVIDENCE   AND    PROOFS.  1025 

given  in  evidence  unless  it  is  properly  stamped.'  In 
all  these  cases  the  proper  proofs  must  doubtless  be 
given  in  conformity  with  the  local  law.^  And  if  the 
proofs  are  given  in  the  mode  which  the  local  law  re- 
quires, there  is  some  difficulty  in  asserting,  that  such 
proofs  ought  not  to  be  deemed  everywhere  a  full 
authentication  of  the  instrument.^ 

§  632.  Boullenois  divides  the  formalities  of  acts  into 
several  classes ;  those  which  are  required  before  the 
act  qiice  reqidriintur  ante  fadimi ;  those  which  are  re- 
quired at  the  time  of  the  act ;  quce  reqidnmtur  in  facto  ; 
and  those  which  are  required  afterwards  ;  qucz  reqiii- 
nmtiir  ex  post  fado.^  But  a  more  important  distinction 
in  his  distribution  is  of  the  formalities  at  the  time  of 
the  act,  which  he  denominates  the  formalities  of  proof, 
[fonnaUtcs  p'obanteB)  and  those  which  are  substantial 
and  intrinsic  formalities.^  Among  the  former  he  in- 
cludes those  which  respect  the  number  of  witnesses 
who  are  to  witness  the  execution  of  the  act,  their  age, 
and  quality,  and  residence,  and  the  date  and  place  of 
the  act.  And  here  he  holds,  that  as  to  the  formalities 
of  proof  the  maxim  applies ;  Solemnitates  tesiimoniales 
non  sunt  in  potestate  contrahentiiim,  sed  in  potestate  jurist 
Solemnitates  siimendce  sunt  ex  consiietudine  loci,  in  quo  res 
et  actus  geritur? 

§  632  a.  Mascardus  holds  a  similar  opinion  ;  and 
says,  that  an  act,  executed  before   a   notary  in   any 


»  Ante,  §  260. 

2  Ante,  ^  260,  260  a,  ^  360,  361,  \  363  to  ^^i  373. 

3  See  Ersk.  Inst.  B.  3,  tit.  2,  ^  39,  40, 

4  I  Boullenois,  Observ.  23,  p.  491. 

5  1  Boullenois,  Observ.  23,  p.  492,  498,  506,  &c. 

6  1  Boullenois,  Observ.  23,  p.  492,  493  ;  ante,  ^  260. 
1  Ibid. 

86* 


1026  CONFLICT   OP   LAWS.  [CH.   XVII. 

place,  if  duly  executed  according  to  the  law  of  that 
place,  and  valid  as  a  notarial  act,  ought  to  be  held  of 
the  same  obligation  and  validity  in  every  other  place. 
Unde  jus  prohationis,  orium  a  princiino,  non  tolUtur  mida- 
tione  loci}     Paul  Yoet  appears  to  entertain  a  different 
opinion ;  and  he  puts  the  case,  whether,  if  an  instru- 
ment were  executed  in  one  place  before  a  notary,  who 
by  the  Lex  loci  is  competent  for  that  purpose,  the  valid- 
ity or  force  of  that  instrument  would  extend  to  another 
place,  where  the  notary  would  be  deemed  incompetent, 
so  that  he  could  not  there  give  public  authenticity  to 
the  instrument.     Quid  si  tcimen  in  iino  loco  factum  sit 
imtriimentum  coram  notario,  qui  ibidem  est  JiaUlis,  an  ex- 
tendetur  vis  illius  instrumenti  ad  aliwn  locum,  iibi  censetur 
inJiaUlis,  sic  iit  publicum  ibidem  neqiieat  facere  instrumen- 
tiim?    After  giving  the  opinions  of  several  jurists  in 
the  affirmative,  he  proceeds  to  give  his   own  to  this 
effect  j    that  it  is  not  so  much  a  question  of  solemn- 
ities as  of  the  efficacy  of  proof,  which,  although  it  may 
be  sufficient  in  one  place,  may  not  be  so  everywhere ; 
and  that  the  tribunal  of  one  country  cannot  give  such 
validity  and  force  to  any  instrument,  as  that  it  shall 
have  operation  elsewhere.^ 

1  Mascard.  De  Probat.  Conclus.  927,  Tom.  2,  p.  336,  337,  [454,  455, 
edit.  1731,]  n.  4  to  n.  14  ;  ante,  §  260  a. 

2  P.  Voet,  de  Stat.  §  10,  ch.  1,  n.  11,  p.  287,  2S8,  edit.  1715;  Id. 
p.  347,  edit.  1661. 

3  P.  Voet,  de  Stat.  ^  10,  ch.  1,  n.  11,  p.  287,  288,  edit.  1715;  Id. 
p.  347,  edit.  1661.  His  language  is;  Quid  si  taraen  in  uno  loco  factum 
sit  instrumentum  coram  notario,  qui  ibidem  est  habilis,  an  extendetur  vis 
illius  instrumenti,  ad  alium  locum,  ubi  censetur  inhabilis,  sic  ut  publicum 
ibid6  nequeat  facere  instrumentum  ?  Sunt  qui  id  adfirmant.  Quasi  loci 
consuetudo,  dans  robur  scripturse,  etiam  obtineat  extra  territorium.  Sunt 
qui  id  ideo  adfirmant,  quod  non  tarn  de  habilitate  et  inhabilitate  notarii 
laboremus,  quam  de  solemnibus.  Quod  si  verum  foret,  res  extra  dubita- 
tionis  aleam  esset  collocata.    Verum,  ut  quod  res  est  dicam  existumem  hie 


CH.  XVII.]  EVIDENCE   AND    PROOFS.  1027 

§  633.  Paul  Voet,  also,  in  another  place,  speaking 
upon  the  subject  of  the  operation  of  the  Lex  fori,  as  to 
the  modes  of  proceeding  in  suits,  uses  the  following 
language.  Si  de  prohationihus,  et  qiddcm  testibus ;  sic 
eas  adhihclit,  sic  examinahit  Jiosce,  front  exigit  fonim  jiidi- 
cisy  ubi  prodiicuntiir.  Si  de  imtrumentis  ;  sic  exJdhenda, 
sic  cdenda,  v.tfert  loci  stcdutwn,  iiU  cxJdhentur,  vel  cdimtur} 
The  generality  of  these  expressions  must  lead  us  to  the 
conclusion,  that  he  was  of  opinion,  that  the  modes  of 
proof  and  the  law  of  evidence  of  the  Lex  fori  ought  to 
regulate  the  proceedings  in  all  suits,  whether  these 
suits  arose  from  foreign  contracts,  or  instruments,  or 
other  acts,  or  not.  But  perhaps  he  may  have  intended 
to  give  them  a  more  limited  application.^ 

§  634.  Bouhier  states  a  case,  where  a  suit  was 
brought  in  France  by  an  Englishman  against  another 


agi,  non  tarn  de  solemnibus,  quam  proband!  efficacia ;  quae  licet  in  uno 
loco  sufficiens,  non  tamen  ubique  locorum  ;  quod  judex  unius  teriitorii 
nequeat  vires  tribuere  instrumento,  ut  alibi  quid  operetur.  Hinc  etiara 
mandatum  ad  lites,  coram  notario  et  testibus  hie  sufficienter  factum,  non 
tamen  erit  validum  in  Gelrise  partibus,  ubi  notarii  non  admittuntur,  ut 
coram  lege  loci,  hie  confectum  esse  oporteat,  quo  in  Geldria  sortiatur 
affectum.  Quemadmodum  enim  personam  non  subditam,  non  potest  quis 
alibi  inhabilitare  ;  ita  nee  personam  subditam  potest  alibi  facere  habilem. 
P.  Voet,  ubi  supra. 

1  P.  Voet,  de  Stat.  ^  10,  ch.  1,  n.  9,  10,  p.  287,  edit.  1715  ;  Id.  p.  347, 
edit.  1661. 

2  Erskine  in  his  Institutes  says,  that  in  suits  in  Scotland  vvitli  foreigners 
upon  obligations  made  in  a  foreign  country,  they  may  prove  payment  or 
extinguishment  lege  loci.  If,  for  instance,  the  law  of  the  foreign  country 
allows  the  payment  of  a  debt  constituted  by  writing  to  be  proved  by  wit- 
nesses, that  manner  of  proof  will  also  be  allowed  by  the  Scottish  courts 
as  sufficient  for  extinguishing  such  debt,  although  by  the  Scottish  law 
obligations,  formed  by  writing,  are  not  extinguishable  by  parol  evidence. 
Ersk.  Inst.  C.  3,  tit.  5,  ^  7.  This  seems  a  mixed  case  of  the  law  of  the 
place  governing  as  to  the  discharge  of  contracts,  and  also  of  the  mode  of 
proof  of  the  discharge. 


1028  CONFLICT   OP   LAWS.  [CH.  XVII. 

person  for  money  supposed  to  be  lent  by  him  to  the 
latter ;  and  he  offered  proof  thereof  by  witnesses.  It 
was  objected,  that  by  the  Ordinance  of  Moulins  (art. 
54,)  such  parol  proof  was  inadmissible.  But  the  Court 
admitted  it  upon  the  ground,  that  the  law  of  England, 
where  the  contract  was  made,  admitted  such  parol 
proof,  and  therefore  it  was  admissible  in  a  controversy 
on  the  contract  in  France.  Bouhier  holds  the  decision 
to  be  correct,  if  the  contract  was  made,  as  he  supposes 
it  to  have  been,  in  England.^ 

§  634  a.  Upon  this  subject  it  is  perhaps  not  possible 
to  lay  down  any  rules  which  ought  to  be,  or  even  which 
can  be  applied  to  all  cases  of  evidence.  Generally  speak- 
ing, it  seems  true  that  neither  the  Lex  loci  contractus 
nor  the  Lex  loci  domicilii,  is  applicable  to  the  course  of 
procedure  -,  but  the  course  of  procedure  ought  to  be 
according  to  the  law  of  the  forum,  where  the  suit  is 
instituted.^  And  perhaps  it  may  be  stated  as  a  general 
truth,  that  the  admission  of  evidence  and  the  rules  of 
evidence  are  rather  matters  of  procedure  than  matters 
attaching  to  the  rights  and  titles  of  parties  under  con- 
tracts, deeds,  and  other  instruments ;  and  therefore 
they  are  to  be  governed  by  the  law  of  the  country 
where  the  Court  sits.  But,  then,  (as  has  been  well 
observed  by  an  eminent  judge,)  in  all  questions  of 
international  jurisprudence  it  is  easy  to  say  how  things 
are  here  and  there  when  there  is  very  great  difference 
between  the  points  ;  but  when  we  come  to  the  confines, 


i  1  Bouhier,  Cout.  de  Bourg.  ch.  21,  ^  205,  p.  415.  See  also  Stry- 
kius,  Tom.  2,  Diss.  1,  ch.  3,  ^  18  to  ^  25,  p.  21,  27. 

2  See  Yates  v.  Thomson,  3  Clark  &  Finnell.  R.  577,  580 ;  Don  v. 
Lippmann,  5  Clark  &  Finnell.  R.  1,  14,  15,  16  ;  Bain  v.  Whitehaven  & 
Furness  Junction  R.  Co.  3  House  of  Lords  Cases,  1,  19. 


CH.  XVII.]  EVIDENCE   AND    rROOFS.  1029 

and  when  one  province  runs  into  the  other,  then  arises 
the  difficulty,  and  then  we  get  intei'  apices  jiiris.^    There 


1  Lord  Brougham,  in  Yates  v.  Thomson,  3  Clark  &  Finnell.  577, 
580.  —  Lord  Brougham  on  this  occasion  said  (it  being  a  case  where  a 
question  arose  in  Scotland  upon  the  interpretation  of  a  will  made  in  Eng- 
land) ;  "  It  is  on  all  hands  admitted,  that  the  whole  distribution  of  Mr. 
Yates's  personal  estate  must  be  governed  by  the  law  of  England,  where 
he  had  his  domicil  through  life,  and  at  the  time  of  his  decease,  and  at  the 
dates  of  all  the  instruments  executed  by  him.  Had  he  died  intestate,  the 
English  statute  of  distributions,  and  not  the  Scotch  law  of  succession  in 
movables  would  have  regulated  the  whole  course  of  the  administration. 
His  written  declarations  must,  therefore,  be  taken  with  respect  to  the 
English  law.  I  think  it  follows  from  hence,  that  those  declarations  of 
intention,  touching  that  property,  must  be  construed  as  we  should  con- 
strue them  here  by  our  principles  of  legal  interpretation.  Great  embar- 
rassment may  no  doubt  arise  from  calling  upon  a  Scotch  Court  to  apply 
the  principles  of  English  law  to  such  questions,  many  of  those  principles 
being  among  the  most  nice  and  difficult  known  in  our  jurisprudence.  The 
Court  of  Session  may,  for  example,  be  required  to  decide,  whether  an 
executory  devise  is  void  as  being  too  remote,  and  to  apply,  for  the  purpose 
of  ascertaining  that  question,  the  criterion  of  the  gift  passing  or  not  pass- 
ing, what  would  be  an  estate  in  the  realty,  although  in  the  language  of 
Scotch  law  there  is  no  such  expression  as  executory  devise,  and  within 
the  knowledge  of  Scotch  lawyers  no  such  thing  as  an  executory  estate 
tail.  Nevertheless,  this  is  a  difficulty,  which  must  of  necessity  be  grap- 
pled with,  because  in  no  other  way  can  the  English  law  be  applied  to  per- 
sonal property  situated  locally  within  the  jurisdiction  of  the  Scottish 
forum  ;  and  the  rule  which  requires  the  law  of  the  domicil  to  govern 
succession  to  such  property,  could  in  no  other  way  be  applied  and  fol- 
lowed out.  Nor  am  I  aware  that  any  distinction  in  this  respect  has  ever 
been  taken  between  testamentary  succession  and  succession  ab  intestato, 
or  that  it  has  been  held  either  here  or  in  Scotland,  that  the  Court's  right 
to  regard  the  foreign  law  was  excluded,  wherever  a  foreign  instrument 
had  been  executed.  It  is  therefore  my  opinion,  that  in  this  as  in  other 
cases  of  the  like  description,  the  Scotch  Court  must  inquire  of  the  foreign 
law  as  a  matter  of  fact,  and  examine  such  evidence  as  will  show  how  in 
England  such  instruments  would  be  dealt  with  as  to  construction.  I  give 
this  as  my  opinion  upon  principle,  for  I  am  not  aware  of  the  question  ever 
having  received  judicial  determination  in  either  country.  But  here  I 
think  the  importing  of  the  foreign  code  (sometimes  incorrectly  called  the 
comitas)  must  stop.  What  evidence  the  Courts  of  another  country  would 
receive,  and  what  reject,  is  a  question  into  which  I  cannot  at  all  see  the 
necessity  of  the  Courts  of  any  one  country  entering.     Those  principles, 


1030  CONFLICT    OF   LAWS.  [CH.    XVIL 

may  be  cases  which  at  once  partake  of  the  nature  of 
the  law  of  evidence,  and  also  of  the  substance  of  the 
weightier  matters  of  international  jurisprudence.^ 


which  regulate  the  admission  of  evidence,  are  the  rales,  by  which  the 
Courts  of  every  country  guide  themselves  in  all  their  inquiries.  The 
truth  with  respect  to  men's  actions,  which  form  the  subject-matter  of  their 
inquiry,  is  to  be  ascertained  according  to  a  certain  definite  course  of  pro- 
ceeding, and  certain  rules  have  established,  that  in  pursuing  this  investiga- 
tion some  things  shall  be  heard  from  witnesses,  others  not  listened  to  ; 
some  instruments  shall  be  inspected  by  the  judge,  others  kept  from  his 
eye.  This  must  evidently  be  the  same  course,  and  governed  by  the  same 
rules,  whatever  be  the  subject-matter  of  investigation.  Nor  can  it  make 
any  difference,  whether  the  facts,  concerning  which  the  discussion  arises, 
happened  at  home  or  abroad  ;  whether  they  related  to  a  foreigner  domi- 
ciled abroad,  or  a  native  living  and  dying  at  home.  As  well  might  it  be 
contended,  that  another  mode  of  trial  should  be  adopted,  as  that  another 
law  of  evidence  should  be  admitted  in  such  cases.  Who  would  argue, 
that  in  a  question  like  the  present  the  Court  of  Session  should  try  the 
point  of  fact  by  a  jury  according  to  the  English  procedure,  or  should  fol- 
low the  course  of  our  dispositions  or  interrogatories  in  courts  of  equity, 
because  the  testator  was  a  domiciled  Englishman,  and  because  those 
methods  of  trial  would  be  applied  to  his  case,  were  the  question  raised 
here?  The  answer  is,  that  the  question  arises  in  the  Court  of  Ses- 
sion, and  must  be  dealt  with  by  the  rules  which  regulate  inquiry  there. 
Now,  the  law  of  evidence  is  among  the  chief  of  these  rules  ;  nor  let  it  be 
said,  that  there  is  any  inconsistency  in  applying  the  English  rules  of  con- 
struction and  the  Scotch  ones  of  evidence  to  the  same  matter,  in  investi- 
gating facts  by  one  law  and  intention  by  another.  The  difference  is  mani- 
fest between  the  two  inquiries  :  for  a  person's  meaning  can  only  be  gath- 
ered from  assuming,  that  he  intended  to  use  words  in  the  sense  affixed  to 
them  by  the  law  of  the  country  he  belonged  to  at  the  time  of  framing 
his  instrument.  Accordingly,  where  the  question  is,  what  a  person  in- 
tended by  an  instrument  relating  to  the  conveyance  of  real  estate  situated 
in  a  foreign  country,  and  where  the  lex  loci  rei  sitae  must  govern,  we 
decide  upon  his  meaning  by  that  law,  and  not  by  the  law  of  the  country 
where  the  deed  was  executed,  because  we  consider  him  to  have  had  that 
foreign  law  in  his  contemplation.  The  will  of  April,  1828,  has  not  been 
admitted  to  probate  here  ;  it  has  not  even  been  offered  for  proof,  so  that 
there  is  no  sentence  of  any  court  of  competent  jurisdiction  upon  it  either 
way.     But  in  England  it  would  never  be  received  in  evidence  nor  seen  by 

^  Ibid.     And  see  Pickering  v.  Fisk,  6  Vermont,  R.  108,  Phelps,  J. 


CH.  xvil]  evidence  and  proofs.  1031 

§  635.  There  are  very  few  traces  to  be  found  in  the 
Reports  of  the  common  law  of  any  established   doc- 


any  Court ;  neither  would  it  have  been  seen  if  it  had  been  proved  ever  so 
formally.  Our  law  holds  the  probate  as  the  only  evidence  of  a  will  of 
personalty,  or  of  the  appointment  of  executors ;  in  short,  of  any  disposi- 
tion which  a  testator  may  make,  unless  it  regards  his  real  estate.  Can  it 
be  said,  that  the  Scotch  Court  is  bound  by  this  rule  of  evidence,  which, 
though  founded  upon  views  of  convenience,  and  for  any  thing  I  know  well 
devised,  is  yet  one  which  must  be  allowed  to  be  exceedingly  technical, 
and  which  would  exclude  from  the  view  of  the  Court  a  subsequent  will, 
clearly  revoking  the  one  admitted  to  probate?  The  English  Courts  would 
never  lo(»k  at  this  will,  although  proof  might  be  tendered,  that  it  had  come 
to  the  knowledge  of  the  party  on  the  eve  of  the  trial.  A  delay  might  be 
granted  to  enable  him  to  obtain  a  revocation  of  the  probate  of  the  former 
will.  It  is  absurd  to  contend,  that  the  Court  of  Session  shall  admit  all 
this  technicality  of  procedure  into  its  course  of  judicature,  as  often  as  a 
question  arises  upon  the  succession  of  a  person  domiciled  in  England. 
Again,  there  are  certain  rules  just  as  strict,  and  many  of  them  not  less 
technical,  governing  the  admission  of  parol  evidence  with  us.  Can  it  be 
contended,  that,  as  often  as  an  English  succession  comes  in  question  be- 
fore the  Scotch  Court,  witnesses  are  to  be  admitted  or  rejected  upon  the 
practice  of  the  English  Courts  ;  nay,  that  exainination  and  cross-examina- 
tion are  to  proceed  upon  those  rules  of  our  practice,  supposing  them  to  be 
(as  they  may  possibly  be)  quite  different  from  the  Scotch  rules  ?  This 
would  be  manifestly  a  source  of  such  inconvenience  as  no  Court  ever  could 
get  over.  Among  other  embarrassments  equally  inextricable  there  would 
be  this;  that  a  host  of  English  lawyers  must  always  be  in  attendance  on 
the  Scotch  Courts,  ready  to  give  evidence,  at  a  moment's  notice,  of  what 
the  English  rules  of  practice  are  touching  the  reception  or  refusal  of  testi- 
mony, and  the  manner  of  obtaining  it ;  for  those  questions,  which,  by  the 
supposition,  are  questions  of  mere  fact  in  the  Scotch  Courts,  must  arise 
unexpectedly  during  each  trial,  and  must  be  disposed  of  on  the  spot  in 
order  that  the  trial  may  proceed.  The  case  which  I  should  however  put 
as  quite  decisive  of  this  matter,  comes  nearer  than  any  other  to  the  one  at 
bar,  and  it  may  with  equal  advantage  to  the  elucidation  of  the  argument, 
be  put  as  arising  both  in  an  English  and  in  a  Scotch  Court.  By  our  Eng- 
lish rules  of  evidence  no  instrument  proves  itself  unless  it  be  thirty  years 
old,  or  is  an  office  copy,  authorized  by  law  to  be  given  by  the  proper 
officer,  or  is  the  London  Gazette,  or  is  by  some  special  Act  made  evidence, 
or  is  an  original  record  of  a  Court  under  its  seal,  or  an  exemplification 
under  seal,  which  is  quasi  a  record.  By  the  Scotch  law  all  instruments 
prepared  and  witnessed  according  to  the  provisions  of  the  Act  of  1G81  are 
probative  writs,  and  may  be  given  in  evidence  without  any  proof.     Now, 


1032  CONFLICT    OF   LAWS.  [CH.   XVIL 

trines  on  this  subject.  We  have  already  seen  in  regard 
to  witnesses  generally,  that  their  competency  is  go- 
verned in  common  cases  by  the  Lex  fori}  But,  suppose 
the  only  witness  to  a  contract,  written  or  verbal,  was 
incompetent  on  account  of  interest  by  the  common  law, 
but  competent  by  the  law  of  the  place  of  the  contract ; 
in  a  suit  in  a  tribunal  of  the  common  law  on  the  con- 
tract, ought  his  testimony  to  be  rejected  ?  Again ; 
suppose  that  the  books  of  account  of  merchants,  which 
(as  is  well  known^)  are  by  the  laws  of  some  states  ad- 
missible, and  by  those  of  other  states  inadmissible,  as 
evidence,  are  offered  in  the  forum  of  the  latter  to  esta- 


suppose  a  will  of  personalty  or  any  other  instrument  relating  to  personal 
property,  attested  by  two  witnesses  and  executed  in  England  according  to 
the  provisions  of  the  Scotch  Act,  as  tendered  in  evidence  before  the 
Court  of  Session  ;  it  surely  never  will  be  contended  that  the  learned 
Judges,  on  being  satisfied,  that  the  question  relates  to  English  personal 
succession,  ought  straightway  to  examine  what  is  the  English  law  of  evi- 
dence, and  to  require  the  attendance  of  one  or  other  of  the  subscribing 
witnesses,  where  the  instrument  is  admissible  by  the  Scotch  law  as  pro- 
bative. Of  this  I  can  have  no  doubt.  But  suppose  the  question  to  arise 
in  England,  and  that  a  deed  is  executed  in  Scotland  according  to  the  Act 
of  1681,  by  one  domiciled  here,  would  any  Court  here  receive  it  as  prov- 
ing itself,  being  only  a  year  old,  without  calling  the  attesting  witnesses  ; 
it  would  have  a  strange  effect  to  hear  the  circumstance  of  there  being  two 
subscribing  witnesses  to  the  instrument,  which  makes  it  prove  itself  in  the 
Parliament  House  of  Edinburgh,  urged  in  Westminster  Hall  as  the  ground 
of  its  admission,  without  any  parol  testimony.  The  Court  would  inevita- 
bly answer,  '  two  witnesses  ;  — then,  because  there  are  witnesses,  it  can- 
not be  admitted,  but  they  must,  one  or  other  of  them  be  called  to  prove 
it.'  The  very  thing  that  makes  the  instrument  prove  itself  in  Scotland, 
makes  it  in  England  necessary  to  be  proved  by  witnesses.  I  have,  there- 
fore, no  doubt  whatever,  that  the  rules  of  evidence  form  no  part  of  the 
foreign  law,  according  to  which  you  are  to  proceed  in  disposing  of  Eng- 
lish questions  arising  in  Scotch  Courts." 

1  Ante,  ^  621  to  ^  623. 

2  See  Pothier  on  Oblig.  P.  4,  ch.  1,  art.  2,  §  4,  n.  719 ;  Cogswell  v. 
Dolliver,  2  Mass.  R.  217;  1  Starkie  on  Evid.  Pt.2,  ^  130,  131 ;  Strykius, 
Tom.  7,  Diss.  1,  ch.  4,  §  5. 


i 


CH.    XVII.]  EVIDENCE   AND    PROOFS.  1033 

blish  debts  contracted  in  the  former  j  ought  they  to  be 
rejected  ? ' 

§  635  a.  Cases,  vice  versa,  may  easily  be  put,  which 
will  present  questions  quite  as  embarrassing.  Thus, 
for  example,  let  us  suppose  the  case  of  a  crime,  com- 
mitted on  board  an  American  ship  on  the  high  seas  by 
a  white  man,  or  upon  a  white  man,  and  the  principal 
witnesses  of  the  offence  are  black  men,  either  free  or 
slaves ;  and  suppose,  (as  is  or  may  be  the  fact,)  that  in 
the  slaveholding  States  black  men  are  competent  wit- 
nesses only  in  cases  in  which  black  men  are  parties, 
and  not  in  cases  where  white  men  are  parties ;  and  in 
the  non-slaveholding  States  black  men  are  in  all  cases 
competent  witnesses.  If  the  offender  is  apprehended 
and  tried  for  that  offence  before  a  Court  of  the  Uni- 
ted States  in  a  slaveholding  State,  would  the  black  men 
be  witnesses  or  not  ?  If  not  there,  would  they  be  wit- 
nesses in  the  case,  if  the  trial  were  in  a  non-slaveholding 
State  ?  In  other  words,  will  the  rules  of  evidence  in 
such  a  case,  in  the  Courts  of  the  United  States,  depend 
upon  the  rules  of  evidence  in  the  State  where  the  trial 
is  had  ?  If  not,  then  what  rules  of  evidence  are  to 
prevail  ?  The  answer  in  the  present  state  of  our  law 
cannot  be  given  with  entire  confidence,  as  to  its  accu- 
racy and  universality  of  adoption. 

§  635  b.  Lord  Brougham,  in  a  recent  case,  where  the 
question  was  much  considered,  both  as  to  the  law  of 


1  Upon  this  very  point  foreign  jurists  have  delivered  opposite  opinions, 
as  appears  from  Hertius,  who,  however,  abstains  from  giving  any  opinion 
on  the  subject.  1  Herlii,  Opera,  De  Collis.  Leg.  §  4,  n.  68,  p.  152,  edit. 
1737;  Id.  p.  214,  edit.  1716  ;  4  Burge,  Comm.  on  Col.  and  For.  Law,  Pt. 
2,  ch.  3,  ^  5,  p.  153.  Paul  Voet  thinks  they  are  to  be  deemed  prima  facie 
evidence,  but  not  conclusive.  P.  Voet,  De  Stat.  ^  5,  ch.  2,  n.  9,  p.  160, 
edit.  1715  ;  Id.  p.  183,  edit.  1661. 

CONFL.  87 


1034  CONFLICT    OF   LAWS.  [CH.  XVII. 

procedure  and  the  rules  of  evidence  on  foreign  contracts, 
sued  in  another  country,  used  the  following  language. 
'•  No  one  will  contend  in  terms,  that  the  foreign  rules  of 
evidence  should  guide  us  in  such  cases ;  and  yet  it  is  not 
so  easy  to  avoid  that  principle  in  practice,  if  you  once 
admit,  that  though  the  remedy  is  to  be  enforced  in  one 
country,  it  is  to  be  enforced  according  to  the  laws  which 
govern  another  country.  Look  to  the  rules  of  evidence, 
for  exauiple.  In  Scotland  some  instruments  are  proba- 
tive ;  in  England,  until  after  the  lapse  of  thirty  years, 
they  do  not  prove  themselves.  In  some  countries  forty 
years  are  required  for  such  a  purpose ;  in  others  thirty 
are  sufficient.  How,  then,  is  the  law  to  be  ascertained, 
which  is  to  govern  the  particular  case  ?  In  one  court 
there  must  be  a  previous  issue  of  fact ;  in  another  there 
need  be  no  such  issue.  In  the  latter,  then,  the  case 
must  be  given  up  as  a  question  of  evidence.  Then 
come  to  the  law.  The  question,  whether  a  parol  agree- 
ment is  to  be  given  up,  or  can  be  enforced,  must  be 
tried  by  the  law  of  the  country,  in  which  the  law  is  set 
in  motion  to  enforce  the  agreement.  Again,  whether 
payment  is  to  be  presumed,  or  not,  must  depend  on  the 
law  of  that  country ;  and  so  must  all  questions  of  the 
admissibility  of  evidence ;  and  that  clearly  brings  us 
home  to  the  question  on  the  Statute  of  Limitations. 
Until  the  Act  of  Lord  Tenterden,  a  parol  agreement  or 
promise  was  sufficient  to  take  the  case  out  of  the  Sta- 
tute of  Limitations ;  but  that  has  never  been  the  case 
in  Scotland.  It  is  not  contended  here,  that  the  practice 
of  England  is  applicable  to  Scotland,  but  these  are  illus- 
trations of  the  inconvenience  of  applying  one  set  of 
rules  of  law  to  an  instrument,  which  is  to  be  enforced 
by  a  law  of  a  different  kind."  ^ 

^  Don  V.  Lippmann,  5  Clark  &  Finnell.  p.  15  ;  Id.  p.  17.     See  Yates 
V.  Thomson,  3  Clark  &  Finnell.  544. 


CH.    XVII.]  EVIDENCE   AND   PROOFS.  1035 

§  635  (?.  In  many  foreign  countries  original  contracts, 
deeds,    conveyances,   and    other    solemn   instruments 
are    often    written  in  tlie    public    books    of   notaries 
public,  and  executed  and  registered  and  kept  there, 
and  are  not  allowed  to  be  given  out  to  the  parties ; 
but    certified   copies   only   thereof    are    delivered   to 
the  parties,  and    these    copies    are   deemed    in   such 
countries    admissible    evidence    in   all   suits   to    esta- 
blish   and    prove    such    original    papers    and    docu- 
ments.    The  question  has  arisen  in  England,  whether 
such  copies,  so  certified,  are  admissible,  either  as  ori- 
ginal, or  as  secondary  evidence  in  suits  pending  in  the 
English  Courts.     It  has  been  held,  that  they  ar-e  not ; 
at  least,  not  without  proof,  that  they  were  made  at  the 
time  of  entering  and  registering  the  original  paper,  and 
in  the  presence  of  the  parties,  although  they  were  ad- 
missible in  the   country  where  the  originals  were  ex- 
ecuted.    The  ground  of  this  decision  seems  to  have 
been,  that  the  rules  of  evidence  of  the  foreign  country 
were  not  to  be  followed,  but  the  rules  of  evidence  of 
England  ;  and  by  the  law  of  England  copies  of  original 
documents  were  not    admissible  under  such    circum- 
stances, unless  proved  by  some  witness,  who  had  com- 
pared them  with  the  original,  as  in  common  cases.^    So, 
upon  the  like  ground,  it  has  been  held,  that  copies  of  a 
judgment  of  the  Supreme  Court  of  Jamaica,  signed  by 
the  Clerk  thereof,  are  not  admissible  evidence  in  a  suit 
in  England,  although  such  copies  would  be  admissible 
in  Jamaica.^ 

1  Brown  V.  Thornton,  6  Barn.  &  Adolph.  185. 

2  Appletoni'.  Lord  Braybrook,  6  Maule  &  Selw.  34  ;  Black  v.  Lord 
Braybrook,  G  Maule  &  Selw.  39.  In  a  recent  case  Vice  Chancellor  Bruce 
held,  that  a  copy  of  a  deed  of  real  estate  in  Jamaica  taken  from  the  Regis- 
try in  Jamaica,  in  which  it  is  required  to  be  recorded,  was  good  evidence 
in  Chancery  in  England  in  a  suit,  where  it  was  pertinent,  although  it  was 


1036  CONFLICT    OF   LAWS.  [CH.  XVII. 

§  635  d.  By  the  old  law  of  Louisiana,  in  case  the 
party  formally  disavowed  his  signature  to  an  instru- 
ment, proof  thereof  was  required  to  be  made  by  ex- 
perts.^ In  a  case,  where  a  written  paper  or  receipt  w^as 
executed  in  the  State  of  Mississippi,  and  a  suit  brought 
thereon  in  Louisiana,  and  the  signature  was  disavowed ; 
the  question  arose,  whether  the  proof  of  the  signa- 
ture in  such  a  case  was  to  be  made  by  experts, 
or  might  be  made  by  witnesses,  as  was  the  law 
of  Mississippi.  The  Court  on  that  occasion  said ; 
"In  treating  of  the  third  and  last  question,"  (that  is, 
the  question  now  under  consideration,)  "  it  is  proper  to 
observe,  that  we  believe  it  to  be  admitted  as  a  principle, 
in  all  tribunals,  that  the  Lex  loci,  or  law  of  the  country 
where  the  contract  is  made,  ought  to  govern  in  suits 
commenced  in  any  other  country  on  such  contracts  -, 
and  it  does  appear  by  a  law  of  the  Partidas,  that 
this  principle  extends  even  to  the  proof  of  the  con- 
tract, expressed  in  general  terms,  which  might  per- 
haps be  applied  to  the  mode  of  proving  facts,  as  well 
as  to  the  amount  of  evidence  necessary  to  their  verifi- 
cation. But  it  is  unnecessary  to  determine  this  point 
absolutely,  in  the  present  case,  because  there  is  suffi- 
ciently found  in  the  determination  of  the  first  and 
second  questions,  on  which  to  decide  against  the  opi- 
nion of  the  Judge  of  the  District  Court."  ^  From  this 
language,  it  would  seem  to  have  been  the  inclination  of 
the  Court  to  admit  the  evidence. 


a  copy  of  a  copy,  i.  e.  of  the  registered  deed,  because  it  would  be  admissi- 
ble in  evidence  in  Jamaica.  Tulloch  v.  Hartley,  1  Y.  &  Coll.  New  Cas. 
Ch.  114,  115. 

1  Code  of  Louis.  1809,  art.  226. 

2  Clark's  Ex'or.  v.   Cochran,  3   Martin,  R.  353,  361,  362.     See  also 
Wilcox  V.  Hunt,  13  Peters,  R.  378. 


CH.  XVII.]  EVIDENCE   AND    PROOFS.  1037 

[§  635  e.  This  question  was  much  discussed  in  a  very 
recent  case  in  the  House  of  Lords,  where  the  rule  was 
fully  recognized  and  acted  upon,  that  the  lex  fori  must 
govern  as  to  the  admission  of  evidence,  and  Lord 
Brougham  observed  in  giving  judgment;  "As  to  the 
stipulations  of  a  contract  made  abroad,  our  courts  are 
bound  by  foreign  law,  which  must  be  to  them  a  matter 
of  f)ict.  But  it  is  a  totally  different  thing  as  to  the 
law  of  evidence.  The  law  of  evidence  is  the  lex  fori 
which  o;overns  the  Courts.  Whether  a  witness  is  com- 
petent  or  not ;  whether  a  certain  matter  requires  to  be 
proved  by  writing  or  not ;  whether  a  certain  evidence 
proves  a  certain  fact  or  not ;  that  is  to  be  determined 
by  the  law  of  the  country  where  the  question  arises, 
where  the  remedy  is  sought  to  be  enforced  ;  and  where 
the  Court  sits  to  enforce  it."  ^] 

§  636.  In  regard  to  wills  of  personal  property  made 
in  a  foreign  country,  it  would  seem  to  be  almost  a  mat- 
ter of  necessity  to  admit  the  same  evidence  to  establish 
their  validity  and  authenticity  abroad,  as  would  esta- 
blish them  in  the  domicil  of  the  testator ;  for  otherwise 
the  general  rule,  that  personal  property  shall  pass 
everywhere  by  a  will  made  according  to  the  law  of  the 
place  of  the  testator's  domicil,  might  be  sapped  to  its 
very  foundation,  if  the  law  of  evidence  in  any  country, 
where  such  property  was  situate,  was  not  precisely  the 
same  as  in  the  place  of  his  domicil.  And,  therefore, 
parol  evidence  has  been  admitted  in  courts  of  common 
law  to  prove  the  manner  in  which  the  will  is  made  and 
proved  in  the  place  of  the  testator's  domicil,  in  order  to 


^  Bain  v.  Whitehaven  &  Furness  R.   Co.  3  House  of  Lords  Cases,   I, 
19.     And  see  Yates  f.  Thompson,  3  Clark  &  Finn.  544. 

87* 


1038  CONFLICT    OF   LAWS.  [CH.  XVII. 

lay  a  suitable  foundation  to  establish  the  will  else- 
where.' 

§  637.  Passing  from  this  most  embarrassing,  and  as 
yet  (in  a  great  measure)  unsettled  class  of  questions, 
let  us  consider  in  what  manner  courts  of  justice  arrive 
at  the  knowledge  of  foreign  laws.  Are  they  to  be  ju- 
dicially taken  notice  of?  Or,  are  they  to  be  proved  as 
matters  of  fact?  The  established  doctrine  now  is,  that 
no  court  takes  judicial  notice  of  the  laws  of  a  foreign 
country,  but  they  must  be  proved  as  facts.^ 

§  638.  But  it  may  be  asked,  whether  they  are  to  be 
proved  as  facts  to  the  jury,  if  the  case  is  a  trial  at  the 
common  law,  or  as  facts  to  the  court  ?  It  would  seem 
as  facts  to  the  latter ;  for  all  matters  of  law  are  pro- 
perly referable  to  the  court,  and  the  object  of  the 
proof  of  foreign  laws  is  to  enable  the  court  to  instruct 
the  jury,  what,  in  point  of  law,  is  the  result  of  the  fo- 
reign law  to  be  applied  to  the  matters  in  controversy 
before  them.  The  court  are,  therefore,  to  decide,  what 
is  the  proper  evidence  of  the  laws  of  a  foreign  country  ; 
and  when  evidence  is  given  of  those  laws,  the  court  are 
to  judge  of  their  applicability,  when  proved,  to  the  case 


1  De  Sobry  v.  De  Laistre,  2  Harr.  &  Johns.  101,  195.  See  Yates  v. 
Thomson,  3  Clark  Ai  Finnell.  544,  574. 

2  See  Mostyn  v.  Fabrigas,  Cowp.  175  ;  Male  v.  Robjerts,  3  Esp.  R.  163; 
Douglas  V.  Brown,  2  Dow  &  Clark,  R.  171  ;  De  Sobry  v.  De  Laistre,  3 
Harr.  &  Johns,  R.  193 ;  Trasher  v.  Everhart,  3  Gill  &  Johns.  R.  2c4 ; 
Brackett  v.  Norton,  4  Connect.  R.  517  ;  Talbot  v.  Seeman,  1  Cranch,  38 ; 
Church  V.  Hubbart,  2  Cranch,  187,  236,  237;  Andrews  v.  Herriott,  4 
Covven,  R.  515,  516,  note  ;  Starkie  on  Evid.  Pt.  2,  §  33  ;Id.  §  92  ;  Id.  Tt. 
4,  p,  569  ;  Conseequa  v.  Willings,  Peters's  Cir.  R.  229  ;  Legg  v.  Legg  8 
Mass.  R.  99  ;  Robinson  v.  Danchy,  3  Barbour,  20  ;  Tyler  v.  Trabue,  8  B. 
Monroe,  306  ;  Territt  v.  Woodruff,  19  Vern.  R.  182  ;  Hosfordv.  Nichols, 
1  Paige,  R.  220. 


CH.  XVII.]  EVIDENCE   AND    PROOFS.  1039 

in  hand.'  [But  the  construction  given  to  a  foreign  sta- 
tute, in  the  foreign  country,  is  a  question  of  fact  for  the 
Jury.2 

§  639.  As  to  the  manner  of  proof,  this  must  vary  ac- 
cording to  circumstances.  The  general  principle  is, 
that  the  best  testimony  or  proof  shall  be  produced, 
which  the  nature  of  the  thing  admits  of ;  or,  in  other 
words,  that  no  testimony  shall  be  received,  which  pre- 
supposes better  testimony  behind,  and  attainable  by  the 
party  who  offers  it.  This  rule  applies  to  the  proof  of 
foreign  laws,  as  well  as  of  other  facts.  But  to  require 
proof  of  such  laws  by  such  a  species  of  testimony  as  the 


1  De  Sobry  v.  De  Laistre,  2  Harr.  &  Johns.  193,  219.  But  see  Brack- 
ett  V.  Norton,  4  Connect.  R.  517.  —  In  Trasher  v.  Everhart,  (3  Gill  & 
Johns.  234,  242)  the  Court  said  ;  "  It  is  in  general  true,  that  foreign  laws 
are  facts  which  are  to  be  found  by  the  jury.  But  this  general  rule  is  not 
applicable  to  a  case,  in  which  foreign  laws  are  introduced  for  the  purpose 
of  enabling  the  Court  to  determine,  whether  a  written  instrument  is  evi- 
dence. In  such  the  evidence  always  goes  in  the  first  instance  to  the 
Court,  which,  if  the  evidence  be  clear  and  uncontradicted,  may,  and  ought 
to  decide,  what  the  foreign  law  is,  and,  according  to  its  determination  on 
that  subject,  admit  or  reject  the  instrument  of  writing  as  evidence  to  the 
jury.  It  is  offered  to  the  Court  to  determine  a  question  of  law,  —  the  ad- 
missibility or  inadmissibility  of  certain  evidence  to  the  jury.  It  is  true, 
that  if,  what  the  foreign  law  is,  be  a  matter  of  doubt,  the  Court  may  de- 
cline deciding  it,  and  may  inform  the  Jury,  that  if  they  believe  the  foreign 
law,  attempted  to  be  proved,  exists,  as  alleged,  then  they  ought  to  receive 
the  instrument  in  evidence.  On  the  contrary,  if  they  should  believe,  that 
such  is  not  the  foreign  law,  they  should  reject  the  instrument  as  evidence. 
Is  not  foreign  law  offered  in  all  cases  to  instruct  the  Court  in  mattf?rs  of 
law,  material  to  the  point  in  issue  ?  Can  the  Court  properly  leave  it  to 
the  jury  to  find  out,  what  the  law  is,  and  apply  it  to  the  case?  Lord 
Mansfield  in  Mosiyn  v.  Fabriijas  (Cowper,  R.  174)  said  ;  "  The  way  of 
knowing  foreign  laws  is  by  admitting  them  to  be  proved  as  facts  ;  and  the 
Court  must  assist  the  jury  in  ascertaining  what  the  law  is.  In  the  absence 
of  other  proof,  the  Court  will  treat  tiie  foreign  law  as  being  like  our  law 
as  to  liabilities  on  contracts  and  interest  "  Leavenworth  v.  Brockway,  2 
Hill,  N.  Y.  Rep.  201  ;  Robinson  v.  Danchy,  3  Barbour,  20. 

2  Holman  v.  King,  7  Melc.  384. 


1040  CONFLICT    OF    LAWS.  [CH.  XVll. 

institutions  and  usages  of  the  foreign  country  do 
not  admit  of,  would  be  unjust  and  unreasonable.  In 
this,  as  in  all  other  cases,  no  testimony  is  required, 
which  can  be  shown  to  be  unattainable.' 

§  640.  Generally  speaking,  authenticated  copies  of 
the  written  laws,  or  of  other  public  instruments  of  a 
foreign  government  are  expected  to  be  produced.  For 
it  is  not  to  be  presumed,  that  any  civilized  nation  will 
refuse  to  give  such  copies  duly  authenticated,  which 
are  usual  and  necessary  for  the  purposes  of  administer- 
ing justice  in  other  countries.  It  cannot  be  presumed, 
that  an  application  to  a  foreign  government  to  authen- 
ticate its  own  edict  or  law  will  be  refused ;  but  the  fact 
of  such  a  refusal  must,  if  relied  on,  be  proved.  But  if 
such  refusal  is  proved,  then  inferior  proofs  may  be  ad- 
missible.^ Where  our  own  government  has  promul- 
gated any  foreign  law  or  ordinance,  of  a  public  nature, 
as  authentic,  that  may  of  itself  be  sufficient  evidence 
of  the  actual  existence,  and  terms  of  such  law  or  ordi- 
nance.^ 

§  641.  In  general,  foreign  laws  are  required  to  be 
verified  by  the  sanction  of  an  oath,  unless  they  can  be 
verified  by  some  other  high  authority,  such  as  the  law 
respects,  not  less  than  it  respects  the  oath  of  an  indi- 
vidual.^ Th'e  usual  mode  of  authenticating  foreign 
laws  (as  it  is  of  authenticating  foreign  judgments)  is 
by  an  exemplification  of  a  copy  under  the  great  seal  of 


1  Church  V.  Hubbart,  2  Cranch,  R.  237  ;  Isabella  v.  Pecot,  2  Louis. 
Ann.  R.  391. 

2  Church  V.  Hubbart,  2  Cranch,  237,  238. 

3  Talbot  V.  Seeman,  1  Cranch,  R.  39. 

4  Church  V.  Hubbart,  2  Cranch,  R.  237  ;  Brackett  v.  Norton,  4  Conn. 
R.  517  ;  Hempstead  v.  Reed,  6  Conn.  R.  480  ;  Dyer  v.  Smith,  12  Conn. 
R.  384. 


i 


CH.    XVII.]  EVIDENCE   AND    PROOFS.  1041 

a  state ;  or  by  a  copy  proved  to  be  a  true  copy  by  a 
witness,  who  has  examined  and  compared  it  with  the 
original ;  or  by  the  certificate  of  an  officer  properly 
authorized  by  law  to  give  the  copy ;  which  certifi- 
cate must  itself  also  be  duly  authenticated.^ 

[§  641  a.  In  many  American  States,  by  express  sta- 
tutory enactment,  printed  copies  of  the  statutes  of  any 
other  State,  purporting  to  be  published  by  authority,  are 
admitted  as^;r/;«a/rt(?/e  evidence  of  such  laws  ;^  but  inde- 
pendent of  such  provision,  foreign  written  laws  can  be 
proved  only  by  an  exemplification  properly  certified, 
and  the  printed  statute  books  of  such  State  are  not  ad- 
missible.^] 

§  642.  But  foreign  unwritten  laws,  customs,  and 
usages,  may  be  proved,  and  indeed  must  ordinarily  be 
proved,  by  parol  evidence.  The  usual  course  is  to 
make  such  proof  by  the  testimony  of  competent  wit- 
nesses, instructed  in  the  laws,  customs,  and  usages 
under  oath.*  [The  knowledge  required  of  the  witness 
must,  it  seems,  have  been  acquired  by  actual  experi- 
ence and  practice  in  the  foreign  country,  and  not  by 
mere  theoretical  instruction  in  a  foreign  University.^] 


1  Church  V.  Hubbart,  2  Cranch,  R.  238  ;  Packard  v.  Hill,  2  Wend.  R. 
411  ;  Lincoln  v.  Battelle,  6  Wend.  R.  475. 

2  Maine  Rev.  Stat.  c.  133,  s.  47  ;  Conn.  Rev.  Stat.  c.  10,  s.  131  ;  Com- 
paret  v   Jernegan,  5  Blackf.  375. 

3  Packard  v.  Hill,  2  Wend.  411  ;  Chanoine  v.  Fowler,  3  Wend.  173  ; 
Church  r.  Hubbart,  2  Cranch,  236  ;  State  v.  Tvvitly,  2  Hawks,  441; 
Bailey  v.  McDowell,  2  Harring.  34. 

4  Church  V.  Hubbart,  2  Cranch,  R.  237  ;  Dalrymple  v.  Dalrymple,  2 
Hagg.  R.  Appx.  p.  15  to  144  ;  Brush  v.  Wilkins,  4  Johns.  Ch.  R.  520; 
Kenny  v.  Clarkson,  1  Johns.  385,  394  ;  Hosford  v.  Nichols,  1  Paige,  220; 
Isabella  v.  Pecot,  2  Louis.  Ann.  R.  391  ;  Baron  De  Bodis'  Case,  8  Q.  B. 
E,.  208;  Mostyn  v.  Fabrigas,  Cowper,  R.  174. 

5  Bristovv  r.  Secquevillc,  19  Law  Journ.  Ex.  289.  But  see  Vander- 
donckt  V.  Thellusson,  Id.  C.  P.  2. 


1042  CONFLICT    OF    LAWS.  [cH.  XVIL 

Sometimes,  however,  certificates  of  persons  in  high 
authority  have  been  allowed  as  evidence  without  other 
proof.^  [And  it  has  been  thought  that  the  peculiar  re- 
lation in  which  the  American  States  stand  to  the  com- 
mon law  of  England  might  require  some  modification  of 
the  rule  first  above  laid  down ;  ^  and  in  Louisiana,  it 
has  been  held  that  the  Courts  of  that  State  would  not 
require  proof  of  the  common  law,  but  would  gather  it 
from  the  most  authentic  books  and  treatises  on  that 
subject.^] 

§  643.  It  seems  that  the  public  seal  of  a  foreign 
sovereign,  afiixed  to  a  writing  purporting  to  be  a  writ- 
ten edict,  or  law,  or  judgment,  is  of  itself  the  highest 
evidence  of  its  authority  ;  and  the  courts  of  other  coun- 
tries will  judicially  take  notice  of  such  public  seal, 
which  is  therefore  considered  as  proving  itself*  [So,  in 
America,  the  seal  of  one  State  afiixed  to  an  act  of  the 
legislature,  proves  itself,  and  imports  absolute  verity  in 
the  courts  of  another  State ;  but  such  seal  must  be  a 
seal  valid  at  common  law,  and  not  merely  an  impression 
on  paper,  which  in  some  States  is  made  a  valid  seal  for 
some  purposes.^]  But  the  seal  of  a  foreign  court  does 
not  prove  itself;  and  therefore  it  must  be  established 


1  In  re  Dormay,  3  Hagg.  EccL  R.  767,  769  ;  Rex  v.  Pictou,  30  How- 
ell's Slate  Trials,  515  to  573  ;  The  Diana,  1  Dods.  R.  95,  101,  10-2. 

2  Carnegie  v.  Morrison,  2  Mete.  404,  Shaw,  C.  J. 

3  Young  V.  Templeton,  4  Louis.  Ann.  R.  254. 

**  Lincoln  v.  Battelle,  6  Wend.  R.  575 ;  Griswold  v.  Pitcairn,  2  Conn. 
R.  85;  Church  r.  Hubbart,  2  Cranch,  238,  239;  Anon.  7  Mod.  R.  66; 
United  States  v.  Johnson,  4  Dall.  416  ;  Appleton  r.  Lord  Braybrook,  6 
Maule  &  Selw.  34  ;  Black  v.  Lord  Braybrook,  6  Maule  &  Selw.  39. 

^  Coit  V.  Millikin,  1  Denio,  376.  And  see  Bank  of  Rochester  r.  Gray, 
2  Hill,  N.  Y.  R.  227  ;  Farmers  &  Manuf.  Bank  v.  Haight,  3  Hill,  N.  Y. 
R.  493. 


CH.    XVII.]  EVIDENCE   AND    PROOFS.  1043 

as  such  by  competent  testimony.^  There  is  an  excep- 
tion to  this  rule  in  favor  of  Courts  of  Admiralty,  which 
being  courts  of  the  law  of  nations,  the  courts  of  other 
countries  will  judicially  take  notice  of  their  seal  with- 
out positive  proof  of  its  authenticity.^ 

§  644.  The  mode  by  which  the  laws,  records,  and 
judgments  of  the  different  States  composing  the  Ame- 
rican Union,  are  to  be  verified,  has  been  prescribed  by 
Congress,  pursuant  to  an  authority  given  in  the  Con- 
stitution of  the  United  States.  It  is,  therefore,  wholly 
unnecessary  to  dwell  upon  this  subject,  as  these  regula- 
tions are  properly  a  part  of  our  own  municipal  law,  and 
do  not  strictly  belong  to  a  treatise  on  international  law.^ 

§  645.  And  here  , these  Commentaries  on  this  inte- 
resting branch  of  public  law  are  brought  to  a  close.  It 
will  occur  to  the  learned  reader,  upon  a  general  survey 
of  the  subject,  that  many  questions  are  still  left  in  a 
distressing  state  of  uncertainty,  as  to  the  true  princi- 
ples which  ought  to  regulate  and  decide  them.  Differ- 
ent nations  entertain  different  doctrines  and  different 
usages  in  regard  to  them.  The  jurists  of  different  coun- 
tries hold  opinions  opposite  to  each  other,  as  to  some  of 
the  fundamental  principles  which  ought  to  have  a  uni- 
versal operation ;  and  the  jurists  of  the  same  nation  are 
sometimes  as  ill  agreed  among  themselves.     StilL  how- 


1  Starkieon  Evid.  Pt.  2,  ^  92  ;  Delafield  r.  Hurd,3  Johns.  R.  310;  De 
Sobry  V.  De  Laistre,  2  Harr.  &  Johns,  R.  193  ;  Henry  v.  Adey,  3  East, 
R.  221  ;  Andrews  v.  Herriott,  4  Cowen,  R.  526,  note. 

2  See  Yeaton  v.  Fry,  5  Cranch,  335 ;  Thomson  v.  Stewart,  3  Conn.  R. 
171. 

^  See  on  this  subject  the  Act  of  Congress  of  2Gth  of  May,  1790,  ch. 
11,  and  the  Act  of  Congress  of  the  27th  of  March,  1801,  ch.  56  ;  3  Story, 
Com.  on  Const.  ^  1297  to  1307;  Andrews  v.  Herriott,  4  Cowen,  R,  526, 
527,  note. 


1044  CONFLICT    OF   LAWS.  [CH.    XVII. 

ever^,  with  all  these  deductions,  it  is  manifest,  that  many 
approximations  have  been  already  made  towards  the 
establishment  of  a  general  system  of  international  juris- 
prudence, which  shall  elevate  the  policy,  subserve  the 
interests,  and  promote  the  common  convenience  of  all 
nations.  We  may  thus  indulge  the  hope,  that  at  no 
distant  period,  the  comity  of  nations  will  be  but  another 
name  for  the  justice  of  nations ;  and  that  the  noble 
boast  of  the  great  Roman  Orator  may  be  in  some  mea- 
sure realized  :  —  Non  erit  alia  lex  Romw,  alia  Athenis,  alia 
nunc,  alia  posthae  ;  sedet  omnes  gentes  et  omni  tempore  una 
Lex,  et  sempiterna,  et  immortalis,  contineUt} 


1  Cicero,  Fragm.  de  Repub. 


I 


INDEX. 


TUK   FIGUKKS   UEFEU  TO   THE   SECTIONS. 


ACCEPTANCES,  of  different  obligation  in  England  and 

Leghorn  ....  265 

by  what  law  governed  .  .317,  333,  344 

ACCOUNT,  BOOKS  OF,  when  admissible  evidence      634,  634  a,  635  c 

ACTIONS,  real,  in  the  Eoman  Law,  what  .  .  .  530 

personal  ......     530 

mixed  ...  ...  530 

where  brought  by  the  Roman  Law         .  .         531-537 

division  of,  by  BouUenois       ....  552 

ACTS  done,  validity  of  depends  on  lex  loci  .  .         G2,  77,  97 

ADMINISTRATORS  AND  EXECUTORS, 

who  correspond  to  under  the  Roman  Law  .         .         508 

their  title  good,  all  the  world  over,  according  to 

Lord  Kames         .  .  .  .  .  511 

their  title  does  not  extend  beyond  their  territory        .        512 
no  suit  can  be  brought  by  or  against  them,  in 

virtue  of  foreign  letters  ,  .         513  -  514  h,  515 

ancillary,  funds  collected  by,  to  what  debts  ap- 
propriated    .  .  .  .  .         513,  514  /> 

collecting  debts  in  another  state,  liable  dc  .so)i 

tort.         ......  514 

whether  liable  for  assets  received  abroad  and 

brought  into  such  state         .  .  .  .514/' 

foreign,  voluntary  payment  to,  Avhen  a  valid  dis- 
charge .  .  .  .  515 

Avhere  they  remit  property  to  pay  legacies    515,  51 5« 
may  sue  in  their  own  names,  for  person- 
al property  reduced  into  possession  .  516 

CONFL.  88 


1046  INDEX. 

ADMINISTRATOES  AND  EXECUTORS,  (contmueJ.) 
foreign,  may  sue  in  their  own  names  upon  nego- 
tiable notes  .  .  .  .  517 

ancillary,  are  subordinate  .  .  .  .518 

■where  property  of  the  deceased  is  in  transitu  at 

his  death  .....     519-5-21 

case  of  stage-coaches  in  different  states,  &c.  be- 
longing to  the  deceased         ....       521 

ancillary,  force  of  judgment  against  .  .  522 

where  real  securities  are  converted  into  personal 

assets  ......         523 

■what  law  is  to  govern  the  priority  of  debts  and 

the  marshalling  of  assets         .  .  .        52-4-527 

Avhich  estate  shall  be  charged  with  debts     485-489,  528,  529 

ADmRALTY,  COURT  OF,  judgments  of  in  rem         .  .  592 

the  effect  of  its  seal  .  643 

ADVANCES,  MUTUAL,  by  merchants  of  different  countries  283 

AGENT,  FOREIGN,  contracts  made  by  .  .  .285 

ALIEN,  dowable  according  to  the  lex  rei  slice  .  .  .         448 

ALLEGIANCE,  natural,  what  .  .  .  .  21 

local,  what  .  .  .  .  .22 

AMBASSADORS,  retain  their  domicil  ...  48 

ANCILLARY  ADMINISTRATORS.    {See  Administkatoks.) 
ANTENUPTIAL  OFFSPRING,  their  legitimation  by  the 

Scotch  law     .  .  87 

ARREST,  when  It  belongs  to  the  remedy         .  .  568  -  571 

ASSETS,  DOMESTIC,  how  affected  by  foreign  administra- 
tions .  .  .  513,  514 
ASSIGNEE  OF  DEBT,  when  he  may  sue  In  a  foreign 
country  in  his  own  name,  or 
not             .         355,398,399,399  0,565,566 
ASSIGNEES  OF  B.^"KRUPT,  whether  they  can  sue  In 

their  own  names  in  a  foreign  country         410,  420,  560 
ASSIGNMENT  OF  DEBTS,  by  what  law  governed  398  -  400, 505-567 

notice  of,  when  necessary  to 

debtor  395,  398,  399  a,  565,  566 

ASSIGNMENTS,  of  foreign  liabilities,  right  to  sue  upon  355-360 

of  an  Irish  Judgment  .  .  355,  566 

general  imder  Bankrupt  and  Insolvent 

laws,  effect  of  .  .  .         403-423// 

{See  BANKRurx  Laws.) 

by  marriage  ....  423 

ATTACHMENT,  before  notice  of  an  assignment   .  .  .      395 

ATTAINDER,  disability  from  ....  620 

AUTHENTICATIONS  of  contracts  must  be  according  to 

the  lex  loci  .  .         259  a,  630  h,  634 


INDEX. 


B. 


1047 


BALANCES  between  raercliants  ol' dificrent  countries  .  283 

BANK  STOCK,  its  locality  .  •  •  •  .38;! 

BANKRUPT  LAWS,  FOREIGN, 

discharges  under  ....  338 

assignments  under        .  .  .  ■  •       403 

whetlier  they  have  a  universal  operation  403,  40-1 

opposite  opinions  of  English  and  American  Courts  403 

reasoning  of  the  English  Courts  in  favor  of  their 

universality  ....  403-408 

authorities  in  support  of  the  English  doctrine  407,  408 

opinion  of  Lord  Eldon  .  •  •  .408 

propositions  established  in  the  English  doctrine  409 

reasoning  of  the  American  Courts  against  their 

universality         .  .  •  •  410-417 

contrary  doctrine  hold  in  France  and  Holland  .         417 

where  confirmatory  conveyance  by  bankrupt  to 

his  assignees  .  .  •  •  .    41S 

•whether  they  operate  a  transfer  of  personal 

property  in  this  country  .  •  419 -423 /t 

priority  of  domestic  creditors  .  •         408-423// 

case  of  bankrupt  partners  resident  in  different 

countries  .  .  .  •  •  4-- 

BENEFIT  OF  INVENTORY,  what        .  •  •  '        ^t^ 

"  BIENS,"  its  meaning  with  the  civilians  .  .  13,  14G,  375 

BILL  OF  LADING,— contract  of  what  place 
BILLS  OF  EXCHANGE,  with  blanks  to  be  filled  in  a  fo- 
reign country  .  -  •  289 
damages  upon       .             •             •          314-320 
when  payable  and  indorsed  in  dif- 
ferent countries         .             .             •  317 
how  governed  as  to  the  incidents 

of  payment         .  •  347,  3G0,  3G1 

their  protest,  by  what  laAv  governed       3G0,  G30 
notice  of  protest,  by  what  law  go- 
verned        .  •  •  •  300 
(See  Negotiable  Ixstruments.J 
BIRTH-PLACE,  how  it  ali'ects  domicil         .             •             •             .40 

citizenship  ...  48 

BLOOD  RELATIONS,  marriage  between  •  114, 114  a,  115 

"  BONA,"  its  meaning  with  the  civilians  •  •  •  375 

BONDS,  HERITABLE,  what  in  Scotch  law         .  •  .        36G 

whether  payable  out  of  the  real  or 

personal  estate  48G,  487,  488,  489,  529 

BOOKS  OF  ACCOUNT,  when  admissible  evidence         •         G34,  G35  c 


1048  INDEX. 

BOULLEXOIS,  Mr.  Henry  has  borrowed  from         .  .          14,  581 

his  principles  as  to  territorial  jurisdiction  .           Id 

capacity  of  persons  .           57,  58 

foreign  contracts  .             .        240 

foreign  judgments  .       613,  614 

BRIDGE  SHAEES,  their  locality           ^ .             .  .             .383 


CANAL  SHARES,  their  locality  .  .  ;  .  383 

CAPACITY  OF  PERSONS  .  .  .  .  50-106 

laws  regulating,  treated  by  the  civilians  as  personal       .         5 1 
of  two  sorts  .  .  .  .51 

universal,  what  .  .  .  51 

special,  what  .  .  .  .51 

determined  by  the  original  domicil  .  .  51 

disagi'eeing  opinions  of  the  foreign  jurists         .         51  a  -  63 
as  to  minority  and  majority  .  51  a,  55,  55  a,  71 

distinctions  as  to,  between  movables  and  im- 
movables .  .  .  52-54,367,368,369 
where  a  change  of  domicil  .  .  .55-63 
opinions  of  BouUenois  and  Mei'lin  .  .  57,58 
Huberus  .  .  .  .60-62 
best  established  doctrines  .  .  .  63-99 
acts  done  in  the  place  of  domicil  to  be  judged 

of  by  the  laws  there  ...  64 

capacity  of  the  domicil  is  deemed  to  exist  every- 
where, the  domicil  being  unchanged  .  .  65-68 
modern  law  of  France  on  this  point  .  .  68 
the  domicil  being  changed,  the  capacity  is  changed  69 
distinction  noticed  on  this  point  .  .  70,  71 
reasons  of  the  civilians  on  fixing  the  age  of 

majority       .  .  .  .  .  72,  73 

no  universal  rules  on  this  subject  .  .         73-70 

opinions  of  the  Supreme  Court  of  Louisiana 

examined  .  .  .  .  75-78 

English  rule  as  to  capacity  to  marry        .  .         79-81 

case  of  British  minor  intermarrying  in  France  80-81 

law  of  actual  domicil  of  universal  obligation         .  81 

different  opinion  of  the  foreign  jurists  .  82-85 

general  principles  in  England  as  to  capacity  to 

marry         .  .  .  85-88 

in  the  American  Courts  .  89 

disabilities  from  minority  in  Continental  Europe  90 

infancy         '    .  .  .  90,  91,  103 

outlawry,  &c.  in  England  .  92 


INDEX. 


1049 


CAPACITY  OF  PERSONS,  (con:inund.) 

disabilities  from  illegitimacy,  according  to  the 

foreign  jurists         .  .  •         93-94 

cau.sa  jyrofessionis,  as  of  monks  .  94 

slavery  ...  90,  9G  a,  104 

idiocy,  insanity,  and  prodigality  99  -  106 

ubiquity  of  the  law  of  domicil  denied  by  the 

Scotch  Court  .  .  .  .  .97 

rules  established  in  England  and  America  .     100-106 

whether  sentences  touching  arc  conclusive         593,  594,  595 

CATHOLICS,  their  views  on  divorces  ...  210 

CESSIO  BONOKUM,  what 339 

CHAjSICERY,  its  jurisdiction  over  foreign  lands  and  persons       543  -  545 
does  not  act  directly  upon  foreign  lands     .  .  545 

CHARGES  on  Lands,  how  to  be  borne  .         366,  367,  486  -  489  c 

CHARITIES  for  foreign  purposes,  when  valid  .  .  479  cZ 

CIIOSES  IN  A  CTION,  not  assignable  by  the  Common      • 

Law  ....  353  —  360,  365 

due  by  foreign  debtors,  assignment  of       .  .     395,  396 

assignment  of,  according  to  the  law  of  the 

owner's  domicil        .  .  .  .  .397 

CITATIONS   VII S  ET  MODIS,  by  what  law  their  priority 

is  determined     ....         546,  547,  576 
jurisdiction  given  by  .  .  .  .  546,  547 

CITIZENS,  who  are 48 

jurisdiction  over  .  .  .  .  ,      540 

CIVILIANS  use  the  term,  mixed  questions        ...  9 

their  discussions  of  the  Conflict  of  Laws         .  .         11 

their  division  of  Statutes   .  .  .  .  12 

object  in  using  their  works     .  .  .  .16 

their  systems  on  the  Conflict  of  La'ys       .  .  26 

their  views  as  to  the  capacity  of  persons         .  .  50,  51 

as  to  fixing  the  age  of  majority  .         72,  73 

on  foreign  contracts  .  .         233-240 

CIVIL  DEATH,  disability  from  .  .  .  •  620 

COHABITATION,  illicit,  foreign  contracts  for      .  .  .       258 

COLLISION  of  Ships  of  different  Nations  on  the  high  seas, 

what  rule  is  to  govern  in  case  of  a  conflict 

of  laws 423  f/,  423  h 

COMITY  OF  NATIONS,  its  relation  to  questions  of  Con- 

Jiict  of  laws  .....         28 

question  as  to  the  propriety  of  this  phrase  .        33-38 

a  proper  phrase  .....         38 

not  the  comity  of  courts  ...  38 

as  to  the  extra-territorial  force  of  laws  33-38,  278 

as  to  Bankrupt  Laws       .  .  -         349-351,414 

83* 


1050 


INDEX. 


COMITY  OF  NATIONS,  (continued.) 

what  it  allows,  as  to  movables              .             .  471,472 

COMMERCIAL  AGENTS,  their  domicil      .            .            .  48 

CO^DIERCIAL  CONTRACTS,  their  interpretation       .  277-278 

COMMON  LAW,  the  Roman  Law  so  called              .            .  12 

COMMUNITY,  LAW  OF,  what               .             .             .  130,131a 

to  what  property  applied             .  148  - 159 

general  result              .             .  158,  159 

whether  real  or  personal              .  172-177 

does  not  attach  to  immovables 

•            under  the  Common  law           .  454 

COMPENSATION  by  the  Roman  Law               .            .  .575 

COMPETENCY^  OF  A  WITNESS,  convict  of  an  infamous 

crime  in  another  State  620-623 
CONFLICT  OF  LAWS,  supposed  by  Huberus  not  to  occur 

often  under  the  Romans    ....  2 

traces  of,  in  the  Digest   ....  2 

importance  of  rules  relating  to          .             .  .         5,  9 

examples  of  questions  of              .             .             .  6 

questions  of,  of  frequent  occurrence             .  .         6,  7 

interesting  to  the  United  States              .             .  9 
not  systematically  treated  by  writers  of 

the  Common  Law        .             .            .             .  10 

little  cultivated  in  England  .             .            .  .10 

minutely  discussed  by  the  civilians          .             .  11 

general  maxims  of    .             .             .             .  1 7  -  38 

who  is  to  determine  what  law  shall  govern  23,  24,  25 

the  power  given  to  the  Courts  in  France  early  .           24 

in  England  and 

America    .  .           24 
difficult  tok  ascertain  the  proper  principles  to 

govern  cases  of     .             .             .            .  .25-28 

variety  of  laws     .....  25 

systems  of  the  civilians,  as  to             .             .  .           26 

governed  much  by  the  comity  of  nations             .  28  -  38 

not  by  the  comity  of  courts            .  .           38 

the  axioms  of  Huberus                ...  29 

Hertius           ....  30 

Huberus  undervalued      .             .            .             .  31 

domestic  laws  prevail  over  foreign       326,  327,  327  a,  3276 

CONSENSUAL  CONTRACT,  marriage  is        .            .  .        109 

CONSULS,  their  domicil,  what            ....  48 

CONTRABAND  OF  WAR,  contracts  to  cover              .  .        259 

CONTRACTS,  to  be  governed  by  the  law  where  made          .  76 

their  validity              .             .             •             .  .231 

texts  of  the  Civil  Law  touchina;              .             .  233 


INDEX.  1051 

CONTRACTS,  {continued.) 

these  texts  discussed  .  .  .  233-237 

opinions  of  the  civilians  .  .  .     234  -  240 

rules  of  Boullenois     .....        240 
doctrines  of  the  Common  Law     .  .  241 

their  validity  governed  by  the  lex  loci  242-248,  327 

exceptions  to  this  rule  .  .  244- 259  &,  328 

■where  injurious  to  the  interests  of  a  nation  244  -  245 

in  evasion  of  the  revenue  laws  of  a  foreign  coun- 
try .....  245- 24a 
growing  out  of  Illegal  transactions          .            .     246  -  251 
smuggling        .             .             .  251-253 
whether  affected  by  mere  knowledge  of  the 

Illegal  purpose        ....  253  -  254 

foreign  revenue  laws  not  regarded  .  .  257 

against  morals  or  public  rights  .  .  .        258 

opposed  to  national  policy  .  .  .  259 

how  affected  by  proofs  required  by  lex 

loci         ....  260-263,318,319 

requisite  of  stamps        .  .  .  260-318,631 

under  the  Statute  of  Frauds  their  validity 

abroad  ....         262,  262  a,  630  ?/ 

parol,  their  validity  abroad  .  .     262,  262  a,  634 

their  nature,  obligation,  and  Interpretation  262,  262  a 

their  nature,  what,  and  how  governed  .  263,  266 

illustration  In  cases  of  warrantry  .  .  264 

their  obligation,  what,  and  how  governed        .         266  -  269 
misinterpretation  of  foreign  laws  .  .  269 

their  Interpretation,  Avhat,  and  how  governed       270  -  278  a 
affected  by  usage  .  .  .  .  270 

meaning  of  terms  month  and  usance  .  270,  271 

of  transient  persons,  how  governed  .  .     273,274 

of  marriage  and  settlement,  their  Interpretation     276,  276  a 
of  commerce,  their  interpretation  .  .     277,278 

governed  by  the  law  of  place  of  performance       279,  279  a 
where  mutual  advances  and  balances  .  283 

made  by  an  agent  abroad  .  .  •  285 

incidents  to  contracts,  what  are,  by  what  rule 

governed         .  .  •  •  351  r; 

when  obligation  personal  .  351  d 

when  obligation  real       .  .  .         351  (^ 

with  merchants  abroad  .  .  -  286 

where  loan  and  security  are  In  different  States  287  a 

bills  of  exchange  with  blanks  to  be  filled  In  a 

foreign  country  ....  289 

where  principal  and  sureties  are  in  different  States         2110 


1052  INDEX. 

CONTRACTS,  {continued.) 

rules  as  to  interest  (See  Intekest.)               .  291-306 

damages  ex  delicto         .            .  .            307 

different  currencies             .            .  308-314 

case  of  mixed  money          ....  314 

negotiable  instruments  and  damages  thereupon  314-321 
payable  and  indorsed  in 

'                                                       different  countries  .            317 
conflicting  opinions  of  New  York  and  Massa- 
chusetts             .....    319,  320 

their  effects  depend  upon  the  lex  loci              .  321 

as  in  the  case  of  liens         ....  322  h 

priority  of  foreign  liens  not  conceded              .  322  -  327  & 

debts  are  payable  everywhere       .             -  .             329 

their  discharge  depends  upon  the  lex  loci        .  330-335 

{See  Discharges.) 

all  their  consequences  do  not  accompany  them  .             336 

impairing  the  obligation  of      .             .             .  341 

principles  as  to  negotiable  instruments      .  .  352  -  361 

[See  Negotiable  Instruments.) 

respecting  personal  property  have  no  situs  362  -  362  h 
respecting  real  property  are  governed  by  the  lex 

rei  sitce      .....  363-373 
conflicting  opinions  of  foreign  jurists  upon  this 

point              .....  368-372/ 

how  dissolved,  when  by  lex  loci  contractus  351  -  351  d 

when  by  lex  domicilii            .  351  d 
jurisdiction  over  and  remedies  upon. 

(See  JuRisDiCTiox,  Remedies.) 
evidence  and  proofs  of. 

(See  EviDEXCE.) 
CORPORATIONS,  FOREIGN,  when  they  may  sue  in  our 

Courts              .             .  .         565 

COVERTURE,  governed  by  the  Zea;  Zoci        .            .             .  102  o 

CREDITORS,  priority  of  domestic,  over  foreign  assignees  420,  421 
distribution  of  effects  of  debtor  among,  by 

what  rules  governed  .             .            .     323- 325  (7,  423  a 
CRIMES,  arc  local  and  exclusively  punishable  where  com- 
mitted      .            .            .            .             .  619-624 
diff'erent  doctrine  of  Hertius  and  Paul  Yoet  625 
CRIMINALS,  FUGITIVE,  whether  a  nation  is  bound  to 

surrender  them  up        .             .  626-628 

CURATOR,  who  by  the  Roman  Law     .            .             .  .493 

CURRENCIES,  questions  arising  from  different        .             .  308-313 

case  of  mixed  monci/        .            .             ■  .314 


INDEX.  1053 


D. 


DAMAGES  in  cases  ex  delicto  .  .  .  .  307 

on  negotiable  instruments     .  .  .  314-320 

DAYS  OF  GRACE,  by  what  la-w  determined  .  .       347,361 

DEBTS,  when  payable  everywhere  .  .  .  329,  514  h 

have  no  situs,  and  follow  the  person      .  362,  362  a,  399 

are  treated  as  movables       .  .  .  362,  362  a,  399 

charged  on  real  property  are  treated  as  immovables         363 
assignment  of,  how  and  when  valid  .  394  -  400 

are  transferred  by  the  law  of  the  creditor's 

domicil  ....         399,  399  a,  400 

when  discharged  by  payment  to  foreign  ad- 
ministrators .  .  .  .  514  Z* 
upon  what  estate  charged  .  .  .  528 
what  law  determines  their  priority  .  524  -  528 
when  an  extinguishment  of  .  582,  582  a,  582  b,  583 
(&e  Limitations.) 

DEFENCES.     (See  Discharges.) 

DELIVERY,  where  necessary  to  complete  a  sale  .  .         386 

foreign  transfer  without,  invalid,  when  .       386  -  390 

DISCHARGES  AND  DEFENCES,  in  the  place  of  the 

contract,  good  elsewhere  .  .  330  -  335 

exception  to  this  rule  ....         334 

from,  matters  ex  post  facto  .  .  .  335 

from  Bankrupt  and  Insolvent  Law  .  .         338 

(See  Bankrupt  Laws.) 
where  extinguishment  of  Debt  .  .  .     338 

from  the  Roman  Cessio  Bonorum  .  .  339 

how  affected  by  the  character  of  the  parties  340  -  349 

Constitution  of  the  U.  States  341 

in  a  place  where  the  contract  was  not  made      342,348,349 
iNhenhy  lex  loci  contractus  .  348-351,  632  o 

when  by  the  lex  domicilii  .  .  351  a  351  f/ 

of  indorsers  how  governed      .  ,  .         343-347 

limitations  upon  their  effects         .  .  348-351  ff 

their  dependence  upon  the  comity  of  nations         .  350 

by  voluntary  payment  to  a  foreign  administrator  5 14  i 

DISCUSSION,  right  of,  what  it  is         .  .  .  .  322  i 

effect  of,  in  a  case  of  conflict  of  laws  .  322  ?> 

DISSOLUTION  OF  CONTRACTS. 

may  be  by  lex  loci  contractus  .         348, 349,  351,  632  a 

aho  hy  lex  domicilii         .  .  •  351a-351(/ 

DISTRIBUTION  AND  SUCCESSION.    (See  Succession.)  480-491 


1054  INDEX. 

DISTRIBUTION  of  effects  of  bankrupt  in  cases  of  con- 
flicting rights  of  creditors  322  c- 327  6,  423  -423./' 
of  personal  property,  hy  what  rules  go- 
verned        .  .  481 -482  a,  514- 514  i 
of  real  property,  by  what  rules  governed  483  -  484  a 
DIVORCES,  regularly  obtained,  a  complete  dissolution  of 

marriage  .  .  .  .  .201 

difficult  to  lay  down  rules  touching       .  .  .     202 

how  obtained  in  England  ...  •  202 

Scotland        .  .  .  .202 

France     .  .  .  .  202 

America         ....      202 
license  of  the  Civil  Law  .  .  .  202 

embarrassing  questions  under  this  head         .  203,  204 

how  affected  by  the  national  character  of  parties      204,  205 
presence  in  Scotland       205  -  207,  215  -  217 
diversities  of  foreign  laws  as  to         .  .  .         208 

views  of  Catholics         .  .  .  .  .210 

Protestants  .  .  •  .  211 

not  systematically  treated  by  the  continental  jurists         212 
under  the  French  law,  discussed  by  Merlin     .  .213 

best  discussed  by  English  and  Scotch  Courts  .  215 

between  parties  not  domiciled  in  Scotland        .         216,  217 
Scotch  doctrine  not  recognized  in  England  218,  21 S 

the  animus  manendi  necessary  to  give  jurisdiction  219 

marriage  after  Scotch  divorce  .  .  .        218 

questions  discussed  by  the  Scotch  Courts  .       221,  222 

reasoning  of  the  Scotch  Courts     .  .  222-225 

not  sanctioned  in  England  .  .       225 

English  marriages  not  dissoluble  in  Scotland         .     225,  597 
whether  governed  by  the  lex  loci  of  marriage  220-  227 

how  treated  in  Massachusetts  .  .  .228 

regulated  there  by  the  actual  domicil     .  .  229 

also  in  New  York  .  .  .        230 

DOMESTIC  CREDITORS,  their  priority  over  foreign  as- 
signees .  .  .         420,  421 

DOMICIL,  what 39-49 

in  the  Roman  law        .  .  .  .  .42 

defined  by  the  French  jurists  ...  43 

residence  and  intent  to  remain  constitute         .  .      43 

rules  for  determining         .  .  .  .         46, 47 

the  place  of  birth        .  .  .  .  .46 

of  an  illegitimate  child         ....  46 

of  minors  .  .  .  .  •  .46 

of  widows  .  .  .  .  •  46 


INDEX.  1055 

DOMICIL,  (^continued.) 

-where  a  person  lives       .  •  •  •  .40 

removal  with  intent  to  reside  .  •  •  4G 

where  a  married  man's  family  lives        .  •  -40 

of  an  unmarried  man  .  •  •  •  ^' 

residence  must  be  voluntary       ...  47 

mere  intention,  without  removal,  and  vice  versa  .     47 

once  acquired,  remains  ..."  47 

principles  in  respect  to  residence  in  different 

countries         .  .  •  •  •  ^°'  ^"^ 

(See  National  Domicil.) 
how  it  affects  the  capacity  of  per- 
sons     .  .  .         51,54a-72,  81,  82,  96a-98 
(See  Capacity  of  Persons.) 
how  it  affects  marriage.     (See  Makriagk.) 
the  incidents  of  marriage. 
(See  Marriage  — ITS  Incidents.) 
matrimonial,  what  .  •  ■  191-199 
of  owner  governs  personal  property         .             •     376-382 
its  transfer     .             •              383,397-400 
of  testator  governs  wills  of  personal  property  464  -  473 

(See  Wills.) 
of  intestate  governs  the  successions  to  personal 

property  .  •  •  481,  481  «,  481  6,  482 

(See  Succession.) 
of  the  ward  limits  the  power  of  the  guardian 

over  his  person         .  .  •  •  495-503 

DOWER,  determined  by  the  fexmsJto  .  •  •  448 

DRAWER,  according  to  what  law  liable      .  •  •  .346 

E. 

EFFECTS  OF  CONTRACTS,  depend  upon  the  lex  loci  .      321 

ENEMY'S  PROPERTY,  contracts  to  cover            .  -            -259 
EVIDENCE  AND  PROOFS,  formalities  of  the  lex  loci 

required          .             •             •             260-262  «,  318, 629 
of  foreign  instruments           .             .             •  •         630 
of  instruments  executed  before  a  fo- 
reign Notary     .            •            •            •  •              ^^^ 
where  persons  interested  and  parties 

are  competent  witnesses  abroad        .  •            •    630 

what  formalities  of  universal  obligation         .  •         631 
in  cases  of  foreign  protest,  registration 

of  deeds.  Statute  of  Frauds,  and  Stamps  .           631 

merchants'  Books,  when  evidence  or  not  .      634  -  635  c 


1056  INDEX, 

EVIDENCE  AND  PROOFS,  (continued.) 

where  parol  proof  is  admissible  or  not        .  .          634 
few  traces  on  subject  of  foreign  Evi- 
dence in  the  Reports             ....     635 

of  Foreign  Wills  and  Personal  Property     .  .           636 
foreign  laws  must  be  proved  as  facts  to 

the  Court       .             .             .             .  .         637,  638 
must  be  the  best  the  nature  of  the  case 

will  admit  .  .  .  .  .  639 
of  foreign  wi'itten  laws  .  .  .  640,641 
of  foreign  unwritten  laws  .  .  .  642 
by  means  of  the  seal  of  a  foreign  sove- 
reign, of  a  Court  of  Admiralty,  &c.  .  .  643 
of  the  laws,  records,  and  judgments  of 

the  different  States  of  the  U.  States     .  .             644 

EXCHANGE,  rate  of,  on  Foreign  Contracts         .             .  307  -  311  a 

EXCOMMUNICATION,  how  it  affects  the  capacity  .        92,  104 

EXECUTIONS,  form  of,  belongs  to  the  remedy             .  572,  573 

EXECUTORS,  FOREIGN,  case  of  note  indorsed  by  358,  350,  517 

{See  Administrators.) 
EXTRA-TERRITORIAL  FORCE  OF  LAWS,         7,  20-23,  98,  279 

depends  upon  comity  32-38,  279 

on  what  grounds  supported  514  h 

E XUE RE  PATRIAM,  Tight  of  English  subjects            .  .         466 

F. 

FIXTURES,  belong  to  the  realty  ....  382 

FOREIGN  ADMINISTRATIONS  .  .  .        507-529 

(See  Administrations.) 
FOREIGN  CONTRACTS.     {See  Contracts.) 

FOREIGN  JUDGMENTS.     (&e  Judgments.)  .  584-618 

FOREIGN  LAW.    (See  Conflict  of  Laws.) 

FOREIGN  LAWS,  ignorance  of  ....     76,274 

misinterpretation  of        .  .  .  269 

must  be  jiroved  to  the  Court  as  facts  637,  638 

FOREIGN  REVENUE  LAWS,  contracts  in  evasion  of     .         246,  247 

not  regarded  .  .  257 

FOREIGNERS,  jurisdiction  over  .  .  .  541,542 

FORIVIS  AND  SOLEMNnTIES  OF  DsSTRUlMENTS, 

governed  by  lex  loci      .  .  260,  262,  262  a,  318 

FRAUD,  judgment  may  be  impeached  for  .  .  597,608 

FRAUDS,  STATUTE  OF,  contracts  under,  their  validity 

abroad  .  .  .     262, 435, 631 

FUGITIVES,  whether  nations  are  bound  to  surrender  up  626,  627 


INDEX.  1057 

G. 

GARNISHMENT,  writ  of,  when  jtidgment  on,  binding  on 

third  persons     .  .  .  .  .549 

GRACE,  DAYS  OF,  by  what  law  governed    .  .  .    347,361 

GUARANTEES,  according  to  what  law  liable      .  .  .267 

GUARDIANS,  who  by  the  Roman  Law  ...  493 

authority  over  the  person  of  a  ward  confined 

to  the  place  of  his  domicil        .  .        495  -  503,  594 

authority  does  not  extend  to  foreign  immo- 
vable property  .  .  .  502,  504 
whether  they  may  change  the  national  domi- 
cil of  a  ward     .....         505 


H. 


"HEIRS  OF  THE  BODY,"  &c.,  how  to  be  construed 

abroad         .  .  .  275,484 

HEIRS,  under  the  Roman  Law,  who  .  .  .507,  508 

can  take  immovable  property 

only  by  the  lex  rei  sitce        .  .         509 

HENRY,  Mr.,  has  borrowed,  without  acknowledgment,  from 

Boullenois  •  .  .  .  .         14, 581 

HERITABLE  BONDS,  in  Scotland,  what  .  .  .366 

whether  payable  out  of  the  real  or 

personal  estate     .  .  486-489,529 

HORNING,  what  by  the  Scotch  law         .  .  .  .546 

case  of  judgment  after,  without  actual  notice  547-549 

HUBERUS,  his  three  axioms  .  .  .  .  .29 

authorities  approving  his  axioms     ...  38 

undervalued  .  .  .  .  .31 

HUSBAND  AND  WIFE,  capacities  of,  by  what  law  governed      50  -  63 

effect  of  change  of  domicil  of     .    55,  55  a,  66 

HYPOTHECATION,  by  what  law  regulated  .  .  322  J- 323 

when  it  has  priority  or  not  .  .     322  a,  327c? 

when  it  adheres  to  property        .  .  401,  402 

when  governed  by  lex  fori    .  .  .675 

(See  Lien.) 


IDIOCY,  capacity  in  case  of  .  .  .  .  99, 106 

IGNORANCE,  of  the  laws  of  a  foreign  country,  its  conse- 
quences .  .  .  .  .76,  274 
ILLEGITBIATE  CIHLDREN,  their  domicU      ...        46 

CONFL.  89 


1058  INDEX. 

ILLEGITBIATE  CHILDREN,  (continued.) 

how  affected  by  the  after  marriage  of  their  pa- 
rents .  .  .  .  .  87-106 
their  disabilities  according  to  foreign  jurists    .         93  -  93  c? 
cannot  make  a  Trill  in  Scotland     .             .            .  469 
ILLICIT  COHABITATION,  foreign  contracts  for            .            .       258 
IMMOVABLES,  capacity  of  persons  as  to        .            .            52  -  54,  368 
heritable  bonds  are         .            .            .            366,382 
gi'ound  rents  are       .             .            .            .         .382 
what  are  to  be  deemed,  is  determmed  by 

the  lex  rei  sitce  .  .        381,  382,  383,447 

foreign,  whether  governed  by  the  law  of 

the  matrimonial  domicil     .  .  .  449 

wills  of,  governed  by  the  lex  rei  sitce  475-479  m 

(See  Wills.) 
succession  to,  governed  by  the  lex  rei  sitce         .  ,  483  a 

(See  Succession.) 
authority  of  a  foreign  guardian  does  not 

extend  to  ....  .     504 

(See  Real  Pkoperty.) 
BIPRISOXMENT,  when  it  belongs  to  remedies 
INCEST,  how  it  affects  marriage 

by  the  law  of  nature 
by  the  positive  law 
INCIDENTS  TO  CONTRACTS,  what  are       . 
INDORSEE,  FOREIGN,  right  of  action  in  his  own  name 
INDORSEMENT  by  a  foreign  executor 
INDORSERS,  according  to  what  law  liable 
INFAJMY,  how  it  affects  capacity 
INFANCY,  when  a  discharge 
INFANTS,  their  domicil,  (See  MixORS.)      . 

when  bound  by  contracts  made  in  foreign  coun- 
tries .... 
INSANITY,  capacity  in  case  of        . 
INSTRUMENTS,  forms  and  solemnities  of,  by  what  law 

governed 
INSURANCE  STOCK,  its  locaUty 
INTERNATIONAL  LAW,  maxims  of,  (See  IHaxims.) 

comity  of  nations 
the  axioms  of  Iluberus 
its  foundations 
(See  Conflict  of  Laws.) 
INTEREST,  is  to  be  according  to  the  law  of  the  place  of 
performance  of  contract 
when  usurious  or  not 
distinction  as  to,  put  by  Boullenois 


568- 

•572 

85,  114- 

-117 

114- 

-116 

116 

322 

me    353- 

-360 

358 

,359 

.  267,  343- 

-347 

91,92,104, 

,620 

. 

332 

46 

m- 

75,  82, 

82  a 

99 

260,  262  a. 

,319 

383 

.     17 

-38 

27 

-38 

29 

• 

35 

291 -292  a. 

305 

305 

.   295, 

296 

INDEX. 


1059 


INTEREST,  (continued.) 

governed  by  the  lex  loci        .  .  .  296,  305 

embarrassing  cases  as  to  .  .  •       297,  298 

double  meaning  of  Zex  ?ocJ    ....         299 
INTERPRETATION  OF  FOREIGN  CONTRACTS,  what 

and  how  governed         270-279 
INTERPRETATION  OF  FOREIGN 

WILLS         .         479  a -479  m,  489,  490,491 
INTESTATE,  succession  and  distribution  of  his  property 

(See  Succession.) 
IN  TRANSITU  property,  by  what  law  governed 
INVENTORY,  BENEFIT  OF,  what 
IRISH  JUDGMENT,  assignment  of        .  .  . 


480- 

-491 

519- 

•521 

507 

355, 

566 

119 

355, 

566 

522. 

,  523 

. 

572 

, 

584 

JEWS,  singularity  of  their  usages 
JUDGMENT,  IRISH,  assignment  of 
JUDGMENTS,  FOREIGN,  of  what  force  where  different 
administrations 
form  of,  belongs  to  the  remedy 
various  questions  arising  under 
of  a  competent  tribunal  valid  according  to  Vat- 

tel  everywhere  .  .  .      585,  586,  611 

courts  must  have  jurisdiction  over  the  cause 

and  parties  ....      58G  -  590 

are  conclusive  upon  immovables  .     591,  592-596 

movables  within  their  ju- 
risdiction       .  .        592, 593 
whether  conclusive  upon  incidental  points        .  593 
in  questions  of  capacity            .      594 
in  cases  of  marriage  and 

divorce  .  .       595-597 

(See  Divorce  —  Marriage.) 
may  be  impeached  for  fraud  .  .  597,608 

when  sought  to  be  enforced  and  when  set  up  in 

bar,  distinction  between  these  cases  598,  599 

distinction  of  Lord  Kames  between  suits  sus- 
taining and  dismissing  claims  .  .     600  -  602 
this  distinction  not  recognized  in  the  common 

law G02 

when  sought  to  be  enforced,  whether  conclu- 
sive -  .  •  •  .603-607 
held  conclusive  by  Nottingham,  Ilardwicke, 

Kenyon,  &c 603-607 

held  examinable  by  Mansfield,  Eyre,  Buller,  &c.         605 
Inclination  of  English  Courts  to  maintain  their 
conclusiveness  .  •  •  •  606 


1060  INDEX. 

JUDGSIENTS,  FOREIGN,  (continued.) 

reasoning  in  favor  of  their  conclusiveness  .       607 

held  examinable  in  America     .  .  .  608 

of  different  States  of  the  U.  States  .  .      609 

no  distinction  in  the  common  law  whether  be- 
tween citizens  or  foreigners         .  .  .610 
doctrines  of  the  foreign  courts  and  jurists            611-618 
Boullenois             .            .            .       613,  614 
could  not  formerly  be  enforced  in  France             615,  616 
now  examinable  in  France            .            .            •        617 
their  validity  in  Holland        .            .            .  618 
JUEISDICTION,  TERRITOEIAL,      .           .           .           .    17, 18 

principles  of  Boullenois  as  to         19 
JURISDICTION,  over  parties  in  cases  of  divorce,  (^S'ee  Divorce.) 
where  actions  must  be  brought  by  the  Roman 

law  .  .  .         •  .  .        531-537 

by  the  common 

law        .  .     538 

depends  upon  the  person  or  thing  being  within 

the  territory  .  .  .  .  539 

over  persons  ....         540  -  549 

citizens  at  home     ....  540 

citizens  abroad  ....       540 

resident  foreigners  .  .  .  541 

refused  by  some  nations  over  foreigners     .  .      542 

over  foreigners  within  territory,  applies  to  suits 

purely  personal  ....  543 

of  chancery  over  foreign  lands  and  persons  543  -545 

does  not  act  directly  upon  foreign 

lands     .....  545 

by  citations  viis  et  modis,  posting,  horning,  &c.  546 

where  judgment  after  horning  and  no  actual 

notice  of  the  suit  .  .  .         547-548  a 

where  property  of  non-residents  is  attached         .  549 

possessed  by  every  nation  over  property  within 

its  territory  ....       550-551 

exclusive  over  immovable  property         .  551  -555 

how  treated  by  Boullenois  .  .  .552 

byVattel  .  .  .  .553 

by  the  common  law  .  .         554 

over  the  cause  and  parties,  necessary  to  every 

judgment  ....         586-590 

(See  Judgments.) 

K. 
KAMES,  LORD,  his  views  on  the  title  of  administrators  511 

his  distinction  as  to  foreign  judgments  600  -  602 


INDEX.  1061 

KNOWLEDGE  of  the  illegal  purpose  of  a  contract         .  253,  254 

of  foreign  laws  ....         76,274 


LAWS,  FOREIGN,  ignorance  of  .  .  .  76,  274 

misinterpretation  of      .  .  .  270 

must  be  proved  as  facts  to  the  Court  637,  638 

LAWS,  variances  of,  among  different  nations         .  .  1,  2,  25 

LAW  OF  NATIONS,  not  recognized  by  the  nations  of  antiquity      2,  3 

this  accounted  for  by  Iluberus  .  .  .2 

'      its  gradual  rise        .  .  .  .  .     2  a,2  b 

its  importance  in  the  present  times     .  .  .  5 

conflict  of  laws  an  important  branch  of    .  .  9 

LEGACIES,  how  interpreted         .  .      312,  313,  313  a,  479-479  m 

in  what  currency  payable  .  .       312,  313,  313  a 

LEGITBIACY,  determined  by  the  lex  loci  of  the  marriage  87, 105, 105  a 

LEVITICAL  DEGREES,  recognized  by  the  English  Statute  115 

LEX  FORI,  (See  Reme-dies.)         ....         566-577 

ZSA'i OCT,  traces  of,  in  the  Roman  Digest      ...  2 

(See  Conflict  of  Laws — Contracts.) 

LIENS,  when  regulated  by  the  lex  loci        .  .  .  322  h 

foreign,  cannot  have  priority     .  .  .  322  6- 327  a 

when  they  adhere  to  the  property  .  .        401  -  402  a 

when  regulated  by  the  lex  fori  .  .  .  575 

LIMITATIONS,  STATUTES  OF,  belong  to  remedies  .        576 

their  object  and  policy         .  .  .  .  576 

suits  by  foreigners  must  be  brought  within  the 

time  prescribed  by  them  .  .  .      577,578 

objections  of  the  foreign  jurists  to  this  rule    '.  579  -  583. 

extinguish  the  right  of  action  .  .  .  580 

■when  they  extinguish  the  claim  .  .  581,582 

where  title  to  property  has  become  final  by 
possession,  and  there  is  a  removal  to  another 
jurisdiction,  with  a  longer  proscription  .  582 

LIVERMORE,  MR.,  his  Dissertations  on  Contrariety  of  Laws     .  1 1 

LIVINGSTON,  Dr.,  his  Dissertation  on  marriage  with  a 

wife's  sister  .  .  .  .115 

LOAN  AND  SECURITY,  when  in  different  States  287  a 

LOCALITY  OF  TRIALS,  distinctions  as  to  .  .  554 

LOCALITY  OF  BANK  STOCK,  &c 383 

LUNATICS,  their  capacity        .  ...  .  .  104 

M. 

MAJORITY,  whether  that  of  the  domlcil  prevails  52,  54  a-  56,  71,  72,  75 
reasons  of  the  civilians  on  fixing  age  of  .  72,  73 

89* 


1062  INDEX. 

MAJORITY,  (continued:) 

cases  in  Louisiana  as  to  .  .  .  75-78 

determined  by  the  lex  loci  .  .  .  102 

MARRIAGE,  English  rule  as  to  capacity  for         .  .  .  79  -  81 

of  British  minors  in  France  .  .  80-80  a 

principles  in  England  as  to  capacity  for  .  87,  87  a,  88 

American  Courts        .  .  .  89 

of  parents  of  illegitimates  in  Scotland  .         87,  87  a 

governed  by  thclex  loci      .        84,  87  a,  102-103,  112,  225 
how  affected  by  incest     .  .  .  85,114-117 

a  favored  contract  .  .  .  .108 

a.  consensual  contract        .  .  .  109,110 

a  matter  of  municipal  regulation         .  .  109,112 

three  exceptions  to  the  rule  that  the  lex  loci 

governs     .....         113  a -121 
1st.  in  cases  of  incest  and  polygamy     .  113a-116a 

between  kindred  prohibited  .  .  113a-116a 

2d.  when  prohibited  by  positive  law  through 

policy  .  .  .  .  .  117 

3d.  when  celebrated  in  desert  or  barbarous 

countries  according  to  the  law  of  domicil  .     118,119 

this  exception  based  upon  necessity  .  .       119 

at  the  Cape  of  Good  Hope  .  .  ,  119 

of  British  subjects  in  foreign  settlements        .  .        120 

grounds  of  the  rule  that  the  Zex  foci  governs  .  121 

the  rule  supported  by  the  foreign  jurists  122, 122  a,  122  b 
in  a  foreign  country,  between  persons  of  ano- 
ther country  .  .  .  123, 123  a,  123  b 
Scotch,  by  parties  domiciled  in  England  .  124 
after  divorce  in  Scotland  .  .  .  .124 
legislative  right  to  dissolve  .  .  .  201 
contracts  and  settlements,  their  interpretation  .  276 
transfers  personal  property  all  the  world  over  .  423 
whether  sentences  confirming,  are  universally 

conclusive  .....        594 

MARRIAGE  — INCIDENTS  TO     ....      125-199 
diversified  regulations  as  to  .  .  126-128 

mainly  discussed  by  Froland    .  .  .  .126 

as  regulated  by  the  French  Code    .  .  ,  130 

the  law  of  community      .         130,131,150-156,163-176 
under  the  Enghsh  law  .  .  .134,  135 

how  the  capacity  of  wife  is  affected  by 

the  domicil  .....         138 

how  the  capacity  of  the  wife  is  affected  by 

changes  of  domicil  .  .  .  .  138 


INDEX. 


1063 


MARRIAGE  —  INCIDENTS  TO,  (continued.) 
opinions  of  the  foreign  jurists 
as  to  the  property  of  husband  and  wife 
1st.  where  there  is  no  change  of  domicil 
general  result  of  the  reasoning 
2d.  where  a  change  has  taken  place   . 
diversity  of  opinion 

no  question  has  arisen  before  the  English  Courts 
on  this  point  .  .  .  .' 

opinion  of  the  Court  of  Louisiana 
tacit  contract  as  to  matrimonial  domicil 
general  propositions  as  to  the  incidents  of  mar- 
riage    ...... 

matrimonial  domicil,  what     . 
where  intention  of  an  instant  removal 
case  of  a  runaway  marriage 
MARSHALLING  ASSETS,  by  what  law  governed 
MATRBIONIAL  DOI^ncIL,  what     . 

whether  it  governs  immovables  abroad 
MAXIMS  OF  INTERNATION.VL  JURISPRUDENCE 

1st.  every  nation  has  exclusive  jurisdiction  within 
its  own  territory         .... 

principles  of  Boullenois  under  this  maxim 
2d.  no  nation  can  affect  property  or  persons  out 
of  its  territory         .... 

exception  to  the  2d  maxim 
3d.  the  force  of  the  laws  of  one  country  in  ano- 
ther depends  upon  the  laws  of  the  latter 
{See  Conflict  of  Laws.) 
where  the  law  is  silent,  who  is  to  determine  in 
cases  of  the  conflict  of  laws 
MERCHANTS,  FOREIGN,  contracts  with 
MERCHANTS'  BOOK,  when  evidence  or  not  in  foreign 
courts     ..... 

MINORITY,  whether  that  of  the  domicil  governs  univer- 
sally .  .  .  52, 5-4  a -56,  71 

reasoning  of  the  civilians 
cases  in  Louisiana  as  to 
disabilities  from,  in  Continental  Europe 
determined  by  the  lex  loci,  in  what  cases 
exceptions  to  this  rule 
MINORS,  their  domicil        .... 
British  intermarrying  in  France 
who,  by  the  Roman  law 
their  capacity.  (See  Capacity  of  Persons 


ISO- 

142 

143 

US - 

■159 

158, 

159 

IGO 

IGl- 

•170 

171 

172- 

182 

J74, 

190 

183- 

•190 

190- 

-199 

198 

198 

524- 

-527 

190- 

■199 

449, 

,450 

.  17 

-38 

18 

19 

20 

-22 

21 

28'; 


23,  lOG 


.     23 

287  a 


634, 635  d 


'•2, 


when  bound  by  contracts  in  a  foreign  country,  or 


.     90 

102,  103 

106 

46 

80,  80  a 

493 

Minority.) 


not 


74,  75,  82,  82rt 


1064  INDEX. 

MISINTERPRETATION  OF  FOREIGN  LAWS,  effect  of        .      269 
MIXED  LAWS,  what  ....  530,  538,  554 

MIXED  ACTIONS,  what  .  .  .  374,425,426,426  a 

IMIXED  MONEY,  case  respecting  .  .  .  .314 

MIXED  QUESTIONS,  a  term  of  the  civilians  .  9 

MONEY,  FOREIGN,  depreciation,  how  payment  to  be  made 

in  ....  .       308,  314 

MONTH,  has  different  meanings  .  .  .  .270 

MORALS,  contracts  against     .  .  .  .  .  258 

MORTGAGES,  are  personal  assets  in  Massachusetts      .  .  523 

MOVABLES,  capacity  of  persons  as  to     .  .  .       52  -  54,  368 

whether  governed  by  the  lex  rei  sike     .  .      368  -  373 

whether  laws  relating  to,  are  personal  or  real  377,  378 

follow  the  person  of  the  owner        .  .  378,378  a 

what,  when  annexed  to  immovables     .  .  .     382 

not  affected  by  foreign  laws,  except  through 

comity  .  .  .  .  .  472 

foreign  judgments  are  conclusive  upon,  when 

within  their  jurisdiction         .  .  .  592 

(See  Personal  Property.) 
MUTUAL  ADVANCES  AND  BALANCES,  between  mer- 
chants of  different  countries         .        283 


NATIONAL  DO:»nCIL.     (See  Domicil.) 

principles  as  to         .  .  .  48,  49 

persons  born  in  a  country  are  citizens         .     48 
reasonable  qualification  of  this  rule  .         48 

foi'eigners  resident  for  permanent 

purposes  are  citizens         .  .  48 

when  foreign  domicil  is  abandoned 

for  native  .  .  .  .48 

of  ambassadors  and  foreign  ministers  48 

of  consuls  ....  48 

of  children  born  upon  the  sea        .  .      48 

of  three  sorts     .  .  .  .  49 

of  a  ward,  whether  guardian  may 

change     .  605,  505  a,  505  b,  505  c,  506 

NATIONS,  LAW  OF.    (&e  Law  of  Nations.) 

NATURALIA  OF  CONTRACTS,  what 

NATURE  OF  CONTRACTS,  what,  and  how  governed 

NEGOTIABLE  INSTRUMENTS,  damages  upon 

payable  and  indorsed  in  different  countries 
made  payable  generally 
conflicting  opinions  in  N.  York  and  Mas- 
sachusetts .... 
discharges  and  defences  upon 


263,  note, 

,  265 

.  263- 

-265 

314- 

■320 

. 

317 

317 

317, 

320 

342 

351- 

360 

-360, 

517 

358, 

359 

359 

347, 

361 

517 

259 

22 

547- 

-549 

630,  632  a 

395 

360 

90 

,  276 

INDEX.  1065 

NEGOTIABLE  INSTRUMENTS,  (continued.) 

made  and  transferred  in  different  coun- 
tries        ..... 
foreign  indorsee's  right  of  action  in  his 

own  name  .  .  •         353 

when  indorsed  by  foreign  executor 
not  mere  choses  in  action 
days  of  grace  upon 

foreign  administrator  may  sue  in  his  own 
name  .... 

NEUTRALITY,  contracts  inconsistent  with      . 
NON-RESIDENTS,  laws  as  to       .... 

jurisdiction  over  and  judgments  against 
NOTARY  PUBLIC,  efficacy  of  his  certificate  in  a  foreign 
country         .  .  .  • 

NOTICE  OF  ASSIGNMENT,  when  necessary 
NOTICE  OF  PROTEST  OF  BILLS,  by  what  law  governed 
NUPTIAL  CONTRACTS,  governed  by  fex- Zocj    . 

O. 

OBLIGATION  OF  CONTRACTS,  what  and  how  governed  266  -  269 

personal,  what        .  568-572 
OFFENCES.    (See  Penal  Laws.) 

OUTLAWRY  IN  ENGLAND,  how  it  affects  the  capacity  .          92 

P. 

PARAPHERNAL  PROPERTY,  what  .  .  .  128 

PAROL  CONTRACTS,  their  validity  abroad       .  .        262,262  a 

PAROL  PROOF,  case  of,  in  France      ....  634 

PARTNERSHIPS  IN  COMMANDITE,  effect  of,  on  con- 
tracts in  foreign  countries  .  .  .  320  a 
PATERNAL  POWER,  of  the  ancient  Romans             .            .     25, 455 
laws  of,  whether  real  or  personal           456-471 
doctrines  of  Merlin          .             .             .         462 
how  far  it  affects  real  property  of 

children  in  foreign  countries  456-472 

as  to  consent  to  marriage  of  chil- 
dren in  foreign  countries       .  .  90 
PAYMENT,  how  and  what  is  good     .            .            .            .            514  & 
in  what  currency         .            •            •            308-313  i 
when  at  par  value              .            .            •     308-313  6 
PENAL  DISQUALIFICATIONS,  not  regarded  in  foreign 

countries  .         104, 620  -  624 


619- 

-624 

• 

625 

.   626- 

-628 

621 

624 

280 

530,  539, 

552 

16 

51 

375,  425, 

,426 

554,  555. 

,  556"" 

1066  INDEX. 

PENAL  LAWS  AND  OFFENCES. 

crimes  are  local  and  exclusively  punishable 
Trhere  committed        .... 

different  doctrine  held  by  Hertius  and  P.  Yoet 
"whether  a  nation  is  bound  to  surrender  up 

fugitives  from  justice 
competency  of  a  witness  convict  of  an  infa- 
mous crime  in  another  State 
reality  of  penal  laws 
PERFORMANCE,  PLACE  OF,  when  its  law  governs 
PERSONAL  ACTIONS,  what 
PERSONALTY,  reasons  for  using  this  word 
PERSONAL  LAWS,  how  they  affect  the  person   . 

what        .... 

whether  they  can  operate  extra- 
territorially 
PERSONAL  OBLIGATION  OF  CONTRACTS,  what 

and  how  governed,         267,  568  -  572 
PERSONAL  PROPERTY, 

is  governed  by  the  law  of  the  domicil  of  the  owner   376  -  382 
reasons  and  origin  of  this  rule  ,  .         379,380 

when  it  loses  its  character  by  being  fixed  to  the 

realty      ......  382 

may  be  transferred  by  the  law  of  the  domicil  of 

the  owner     ....  383,397-400 

exceptions  to  this  rule        .  .  .  383,  384 

valid  transfer  of,  by  the  law  of  the  situs  .  384 

delivery  necessary  to  complete  a  sale  in  Louisiana  386 

Massachusetts     389,  392 
invalidity  of  foreign  transfer  without  delivery, 

against  creditors  .  .  .  386  -  394 

this  doctrine  questioned  .  .  .  390 

case  of  transfer  at  sea  held  valid  without  delivery  391 

case  of  transfers  by  partners  in  different  places  392 

whether  the  lex  rei  sitcE  of  the  place  of  transfer 

should  prevail  .  .  .  .  392 

where  attachment  before  assignment  .  .  400 

subject  to  what  liens,  &c.  .  .  .  401  -  402  a 

assignments  under  bankrupt  and  insolvent  laws      .  403 

(See  Baxkrupt  Laws.) 
transferred  by  marriage  all  the  world  over       .  423 

will  of,  governed  by  the  law  of  the  testator's 

domicil     .....  465  -  473 

(See  Wills.) 


INDEX.  1067 

PERSONAL  PROPERTY,  (continued.) 

succession  to,  governed  by  the  law  of  the  intes- 
tate's domicll  ....   481-482(1 
(See  Succession.) 
the  primary  fund  for  the  payment  of  debts  in 

Holland  and  England  .  .  .  529 

how,  when  reduced  into  possession  by  a  foreign 

executor  .  .  .  .  .516 

(See  Movables.) 
PERSOXS,  jurisdiction  over,  (&e  Jurisdiction.)       .  540-549 

POLICY,  NATIONAL,  contracts  opposed  to  .  .    259  -  259  b 

POLYGAMY,  forbidden  by  Christianity  .  .  .114 

makes  an  exception  as  to  the  validity  of  mar- 
riages by  to;  Zoci    »         .  .  .  .  114 
POSTING,  notice  by,  local  in  its  effects       .            .            .                   547 
PRESCRIPTION.     (See  Limitations.) 
PRESENCE,  gives  jurisdiction  to  the  Scotch  laws  in  cases 

of  divorce  .  .  205-207,217,222-225 

(See  Divorces.) 
PRINCIPALS  AND  SURETIES,  when  in  different  States,  290 

PRIORITY  AND  PRIVILEGE  of  foreign  hens  how  and 

when  allowed     .  .  .  .         322&-325o 

of  domestic  creditors  over  foreign  assignees  420,  421 

of  creditors  under  administrations,  by  what  law 

determined  .... 

contlict  of,  between  foreign  and  domestic 

creditors       ..... 
when  determined  by  the  lex  fori 
PRIVILEGES  AND  PRIORITIES,  what  is  the  rule  when 
law  different  in  different  countries 
as  to  real  estate  or  immovables 
as  to  personal  estate  or  movables 
(See  Lien.) 
PROCESS,  belongs  to  remedies,       ....  568 

(See  Remedies.) 
PRODIGALITY,  how  it  affects  the  capacity    .  .  .99,  106 

PROMISSORY  NOTES. 

(See  Negotiable  Instruments.)     314  -  320,  353  -  360 
PROOFS,  FOREIGN.     (See  Evidence.) 

PROPERTY  m  TRANSITU,  by  what  law  governed         .        401,  402 
PROSTITUTION,  foreign  contracts  for  .  .  .258 

PROTEST  OF  BILLS  OF  EXCHANGE,  how  made,  and 

according  to  what  law  .  .  .         360,  631 

PROTESTANTS,  their  views  on  divorces  .  .  .211 

PUBERTY,  age  of,  by  the  Roman  law  .  .  .  .    493 

PUPILS,  who  by  the  Roman  law  .  .  .'  .493 


524 

-527 

3-23- 

325  a 

575 

321- 

327  6 

321- 

■327  ft 

323- 

327  h 

1068  INDEX. 

E. 

RATE  OF  EXCHANGE,  on  foreign  contracts        .  .      308-311 

REAL  ACTIONS,  what     .  .  .  .  .  530,  552 

REAL  LAWS,  what  ....  375,425,426 

REAL  PROPERTY,  governed  by  the 

lex  rei  sike  .  .        364-367,424-428,463 

so  contracts  respecting        .  .  .  364  -  373 

contracts  respecting,  how  dissolved  and  extin- 
guished .  .  .  .         322  J,  note,  351 

what  is  real  property  according  to  Pothier  .  371 

does  not  pass  under  foreign  bankrupt  laws  .        428 

capacity  to  take  or  transfer,  governed  by  the 

lexreisilce  ....  430-434 

foreign  jurists  divided  upon  this  point     .  .    423-434 

capacity,  according  to  some,  determined  by  the 

domicil  of  the  party  ....       432 

forms  of  transfer  determined  by  the  lex  rei  slice     .  435 

foreign  jurists  divided  on  this  point  .  435-444  & 

testaments  of,  according  to  some,  governed  by 

the  domicil  of  the  testator  .  .        437  -  444  l> 

the  extent  of  the  interest  transferred  governed 

by  the  lex  rei  siice      ....        445, 446 

doctrines  of  the  Common  and  Civil  Law  alike 

on  this  point  .....         445 

what,  determined  by  the  Zex  rei  sz'to         .  .  447 

acquired  by  operation  of  law,  only  according 

to  the  lex  rei  sitce  ...  .       448 

under  the  Common  Law,  not  aflFected  by  the 

law  of  community        ....  454 

difficulties  of  the  civilians  on  this  subject        .  .      463 

wills  of,  governed  by  the  Zea;  rei  sj'to         .  .  474 

(See  Wills.) 
succession  to,  governed  by  the  lex  rei  sitce    .        483  -  483  d 

(See  Succession.) 
not  subject  to  the  authority  of  a  foreign  guar- 
dian ......         504 

trespasses  to,  are  deemed  local  .  .  554 

a  different  doctrine  once  held  .  .  .      •  554 

jurisdiction  over,  exclusive        .  .  .       550-555 

foreign  judgments  are  conclusive  upon        .  .         591 

(See  Immovables.) 
REAL  SECURITIES,  how  administered  when  converted 

into  personal  assets  .  .  .  .523 

REALITY,  reasons  for  using  this  word            .            .            •  16 

ofPenallaws 624 


INDEX. 


10G9 


KE-EXCIIANGE,  by  what  law  governed            .            .  308-311 
EEGISTRATION,  necessarj-  to  make  certain  instruments 

evidence     .....  <^31 
REMEDIES,  are  part  of  the  consequences  of  contracts       .  .        337 
classed  into  three  sorts                .            .            •  53(» 
by  actions  real,  personal,  and  mixed  in  the  Ro- 
man Law           ....  530 
where  actions  must  be  brought 

(See  Jurisdiction.) 
are  governed  by  the  lex  fori  .  ■  ■  55G 
reasons  of  this  rule  ....  557,558 
this  rule  recognized  by  the  civilians  .  559  -  562 
questions  as  to  what  belongs  to  .  •  563 
what  persons  may  sue  .  .  ■  565  -  56  ( 
where  assignment  of  an  Ii-ish  judgment  .  566 
where  a  scrawl  has  the  force  of  a  seal  .  .  567 
the  mode  of  process  belongs  to  .  .  568 
where  the  contract  creates  no  personal  obliga- 
tion             569,570 

when  a  party  is  liable  to  arrest               .             .  571 

form  of  judgments  and  executions  belongs  to  .        572 

set-off,  liens,  priorities,  &c.  belong  to         .  .             575 

Statutes  of  Limitation  belong  to         .             .  .       576 

REMOVAL,  with  intent  to  reside,  how  it  affects  domicil  .       46,  47 

RESIDENCE,  its  importance  in  determining  domicil         .  .        44 

must  be  voluntary              ....  44 

once  acquired  remains            .            .            •  .47 

principles  as  to,  in  different  countries        .  .             48 
gives  jurisdiction  to  the  Scotch  Courts  in  cases 

of  divorce                 ....  215-225 
{See  Divorces.) 

REVENDICATION,  right  of,  what      ....  401 

REVENUE  LAWS,  FOREIGN,  contracts  in  evasion  of     .  245,  246 

not  regarded            .  .            257 

ROMAN  LAW,  called  the  Common  Law    .                        .  .18 

as  to  domicil        .             .            .            •  •            42 

RUNAWAY  MARRIAGE,  case  of           .            -            •  .198 

S. 

SCOTCH  HERITABLE  BONDS,  what         ...  366 

whether  paj-able  out  of  the  real  or  personal 

estate  ....  486-489,529 

SCOTCH  ]\IARRIAGES  by  parties  domiciled  in  England         .         124 

SCOTCH  DIVORCES  of  English  marriages  .         124,  215  -  225 

how  obtained         ....       202 

{See  Divorces.) 

CONFL.  'JO 


1070  INDEX. 

SCR  AWL, -where  it  has  the  force  of  a  seal  .  .  .        5G7 

SEAL,  of  a  sovereign,  Court  of  Admiralty,  &c.,  its  effect        .  643 

SECURITY  AND  LOAN,  when  in  different  States        .  .287a 

SENATUS-CONSULTUM  VELLEIANUM,  what  it  is        15,  57,  425 
■whether  it  is  a  real  or  a  personal  statute  .  15,425 

SET-OFF,  belongs  to  the  remedy,  {See  Compe>'sation.)  .        575 

SETTLEMENTS,  MARRIAGE,  their  interpretation  .  276 

SISTER-IN-LAW,  marriage  with  .  .  .  .116 

Dr.  Livingston's  Dissertation  as  to        .  .  115 

SLAVERY,  how  it  affects  the  capacity     .  .  .  .104 

SLAVE-TRADE,  foreign,  contracts  to  carry  on         .  .  259 

SMUGGLING,  conti-acts  for  ....     251,252,253 

SOVEREIGN,  FOREIGN,  may  sue  in  our  Courts    .  .  5G5 

SOVEREIGNTY  of  a  nation  over  its  own  subjects        .  21,  22,  84 

within  its  own  territory       .  .  .  22 

SPECIAL  LAWS,  as  to  the  capacity  of  persons,  what  .  51 

STAMPS,  how  they  affect  foreign  contracts        .  .       260,  318,  631 

STATUTE  OF  FRAUDS,  contracts  under,  their  validity 

abroad         .....         262,435,631 

STATUTES,  divisions  of,  by  the  civilians    .  .  .  .12 

what  .  ....         12,  13 

personal,  what  .  .  .  .  14,  375 

real,  what  .  .  .  13,375,460,484 

mixed,  what     .  .  .  .  .  13,  375 

distinction  between  personal  and  real         .  14  - 16,  461 

Senatus-consultum  Velleianum  .  .  15, 425 

distinction  between  local  and  personal        .  .  364 

STATUTES  OF  LBHTATIONS.     {See  LimiTxVTioks.) 

STOCK,  in  banks,  canals,  &c.,  its  locality  .  .  .     383 

STOPPAGE  IN  TRANSITU,  right  of,  how  it  adheres  to 

property  .....  401 

SUBJECTS,  wherever  they  may  be,  bound  by  the  laws  of 

their  country  .  .  .  .         21-23,84 

who  are  .....  541 

SUCCESSION  AND  DISTRIBUTION, 

of  personal  property  governed  by  the  law  of  the 

domicil  of  the  intestate         .  481,  482  a,  514,  514  6 

reason  of  this  rule  .  .  .  .         514  & 

of  immovable  property  governed  by  the  lex  rei  sitcc  483  -  484 
meaning  of  the  word  "heirs,"  &c.  how  deter- 
mined    ......  484 

embarrassing  questions  arising  under  .         485-491 

where  intestate,  domiciled  in  England,  left  real 

estate  in  Scotland        .  .  .  .  487 

SURETIES,  according  to  what  law  liable  .  .  .267 

SURETIES  AND  PRINCIPALS,  when  in  different  States    .  590 


INDEX.  1071 


TENDER  AND  REFUSAL,  when  a  discharge  .  332 

TERRITORIAL  JURISDICTION  .  .  .  .18 

principles  of  Boullenois  as  to         .  .  .   .  It) 

TERRITORY,  force  of  the  laws  of  a  nation  out  of  .     7,  20  -  23,  98 

this  force  depends  upon  comity        .  32  -  38,  278,  306 

power  of  administrator  does  not  extend  beyond  512 

jurisdiction  depends  upon  .  .  .  539 

TESTMIENTARY  HEIR,  by  the  Roman  Law,  who        .  .507 

TESTAINIENTS.     (See  Wills.) 

TORTS  ON  OCEAN  of  foreign  vessels,  by  what  law  go- 
verned in  case  of  a  conflict  of  laws  .  .        423// 
(See  CoLLisiox.) 
TRANSFER  of  foreign  liabilities,  right  to  sue  upon             .         353-3G<» 
of  personal  property.     (See  Personal  Peoperty.) 
under  the  Bankrupt  Laws.     (See  Bankrupt  Laws.) 
TRANSIENT  PERSONS,  contracts  of         .             .             .         273,274 
TRIALS,  locality  of,  distinctions  as  to         .             .             .  •        554 
TURNPIKE  SHARES,  their  locality               ...  383 
TUTOR,  who  by  the  Roman  Law              ....        493 

U. 

UNCLE  AND  NIECE  BY  BLOOD,  marriage  between    •  .         114  o 

UNIVERSAL  LAWS,  as  to  the  capacity  of  persons,  what  .        51 

USAGE,  how  it  affects  contracts         ....  270 

USANCE,  its  meaning  in  dilferent  countries         .             .  .         271 

V. 

VALIDITY,  OF  CONTRACTS,  what            ...  232 
governed  hy  the  lex  loci          .            .           242  0,243,327 
(See  Contracts.) 

VALUE  OF  MONEY  IN  CONTRACTS,  by  what  rule 

ascertained          .....  308  &c. 

VENIAyETATIS,  mcamngo?    ....  60,  note 

VJIS  ET  MODIS,  citations,  what  they  are     .             .             .  546 

W. 

WARD.    (See  Guardians.) 

WARRANTY,  affects  the  nature  of  a  contract  .  .  264 

WIDOWS,  their  domicil  .  .  -  .40 

WILLS  AND  TESTAMENTS,  according  to  the  law  of 
the  testator's  domicil  pass  personal  property, 
wherever  situate  ....        464-475 


1072  INDEX. 

WILLS  AND  TESTAJklEXTS,  {continued.) 

Sir  J.  Nicholl's  exception  to  this  rule  in  the 

case  of  English  subjects  abroad                  .  4<jG,  407 

thi*  rule  established  in  America              .             .  468 

Scotland         .             .  .          460 

among  the  foreign  jurists         .  470 

as  laid  down  by  Yattel         .             .  471,472 

where  change  of  domicil  after  making  the  will  .        473 

interpretation  of  foreign         .  479  a  -  479  m,  488,  491 

of  immovable  proj^erty,  governed  by  the  lex  rei 

sitce         ....        431 -443  a,  473-479 

distinctions  of  the  foreign  jurists  on  this  head  475-477 
the  Scotch  law  in  coincidence  with  the  Com- 
mon Law         .....  478 

when  interrupted  accordiug  to  local  rules  .        484 
of  personal  propei-ty,  by  what  evidence  esta- 
blished                  ......       636 

WITNESS,  competency  of,  when  convicfofan  infamous 

crime  in  another  state                 .             .             .  621 
when  competent  abroad  and 

incompetent  here             .  .         629 


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